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At last, you say, will you now tell us about this Supreme Court case that may cleanse the airways or allow foul speech to join with the generally putrid content on TV? Yes.
We are dealing with the apparently spontaneous and one-shot indecent utterances of Bono-Richie-Cher and not the prepared, 12-minute monologue by George Carlin. We are dealing with so-called indecent speech that is protected by the First Amendment and not obscenity, which is not. The problem with obscenity is not whether it can be regulated; the problem is knowing what it is. As Justice Stewart famously wrote, “I can’t define it but I know it when I see it.”
In Fox Television Stations, Inc. v. Federal Communications Commission (FCC), 613 F.3d 317 (2d Cir. 2010), the federal appeals court in New York decided that the FCC could not attach liability to the utterances under discussion because its policy was so broad and vague that most people simply would not know what was permitted and what was not. That being the case, free speech would be stifled out of fear of the unknown. This is known in constitutional circles as the vice of vagueness.
The FCC set forth its indecency policy in its 2001 Industry Guidance and explained that an indecency finding involved the following two determinations: (1) whether the material “describe[s] or depict[s] sexual or excretory organs or activities”; and (2) whether the broadcast is “patently offensive as measured by contemporary community standards for the broadcast medium.” Under the policy, whether a broadcast is patently offensive depends on the following three factors: (1) “the explicitness or graphic nature of the description or depiction”; (2) “whether the material dwells on or repeats at length” the description or depiction; and (3) “whether the material appears to pander or is used to titillate, or whether the materials appears to have been presented for its shock value.” Since 2001, the FCC has interpreted its indecency policy in a number of decisions, including Golden Globes Order and the argument is that enforcement adds clarity to the more general policy.
There is more to the analysis than space and decency will allow. It is enough to state, I hope, that this is a pretty good sample of what the Supreme Court has before it for decision. As Adam Liptak, N.Y. Times, May 1, 2012 noted, it is a bit odd that the Supreme Court will not allow the offensive words on review to be uttered in the hallowed halls of the Court. Previously, Chief Justice Burger told counsel that the Court was familiar with the facts so there was no need to bandy about four-letter words.
On another level, why so much fuss? Twenty or thirty years ago, the need for such regulation was based on protecting children and an inability to monitor or control what came into millions of homes. There are now censorship chips in TVs and very easy ways to filter programs. Just turn off what offends you and keep the regulations at a bare minimum. Let the kids play Grand Theft Auto or other offensive games.
Oh, how will the Supreme Court decide? I’m not certain, but I think they will overrule the federal appeals court and uphold the FCC policy.
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