October 30, 2008
WASHINGTON (RNS) -- While the rest of the country heads to the voting booth Tuesday (Nov. 4), the U.S. Supreme Court will be taking on television obscenity in a hearing that could lead to the first ruling in 30 years on standards for regulating public airwaves.
The case, FCC v. Fox Television Stations, follows a challenge by Fox Broadcasting to the Federal Communications Commission's policy on obscenity and profanity during daytime and early evening hours on radio and television.
Fox was reprimanded for two incidents in 2002 and 2003, involving singer Cher and actress Nicole Ritchie, in which variations of a vulgar four-letter word were broadcast during live award shows. The reprimand came after the FCC changed policy in 2004 to say that even "fleeting" expletives could expose the network to sanctions.
In June, the 2nd U.S. Circuit Court of Appeals in New York called the FCC policy "arbitrary and capricious," said it did not follow requirements of federal law and also raised questions about First Amendment rights. The appeals court questioned whether the FCC's 2004 change in policy was justified.
Following the appeals decision, the Bush administration urged the Supreme Court to consider the case, claiming the lower court's ruling left the FCC torn between protecting freedom of speech and protecting children.
"While the FCC has a statutory duty to enforce the indecency laws, I continue to believe that all of us -- government, industry, and parents-- have a role to play in protecting our children from inappropriate material," FCC Commissioner Michael J. Copps said earlier this year.
"The court's review will hopefully bring additional clarity to concerned citizens and broadcasters alike."
Television and radio stations argue that the FCC's changing standards leave them with little guidance on what is considered indecent. The FCC has no authority over cable or satellite radio.
Last week, Peter Chernin, the chief operating officer of Fox's parent company, News Corp., offered a glimpse of the network's stand.
"Quite simply, it is time for the government to get out of the business of regulating `indecent' speech on broadcast TV," Chernin said in a speech at the Media Institute in Arlington, Va. "The threat it poses to core First Amendment values cannot be justified in our technologically diverse world."
In a 1978 case, FCC v. Pacifica Foundation, the court agreed that an afternoon broadcast of comedian George Carlin's "seven dirty words" monologue was indecent, giving the FCC authority to police radio and television broadcasts from 6 a.m. to 10 p.m., when children are most likely to be in the audience.
The same policy was followed until Janet Jackson's infamous "wardrobe malfunction" at the 2004 Super Bowl. That incident, along with viewers' complaints over Cher and Nicole Ritchie, prompted the FCC to crack down on broadcasters' responsibilities to air clean content.
Some critics of the FCC policy argue that responsibility for television censorship should fall on parents, not the government. TV Watch, an organization that promotes parental control, claims 65 percent of parents monitor their children's media use. They also assert that new technologies allow parents to keep an even closer watch on children's media consumption.
But supporters of the FCC policy say television and radio stations need to be monitored.
"We're hopeful that the court will side with millions of parents and families concerned about the decency of television," said Dan Isett, director of public policy for the Virginia-based Parents Television Council.
The council's Web site enables parents to submit an official indecency complaint online with the FCC. The group also filed an amicus brief in support of the FCC in the upcoming Supreme Court case, asking the justices to reject the lower court ruling.
"We hope the Supreme Court will right this wrong that the 2nd Court of Appeals imposed on us," Isett said.
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