Some people would say the U.S. Supreme Court's decision this week regarding FCC decency standards is irrelevant, given the public airwaves' relatively small portion among a seemingly endless array of video choices available to consumers. We think differently.
While it is true that the Internet and cable companies are expanding viewing options that are beyond the reach of decency standards, the government still has an important role to play in defining indecency and setting official rules as to what is and is not appropriate. Government has an interest in doing so. Rational and thoughtful debate, lawfulness and good citizenship in general depend upon rules of civility. Abusive and profane language, inappropriate sexual portrayals and a host of other behavior, including racially derogatory remarks, degrade civility even, under many circumstances, in the context of entertainment.
The Supreme Court on Thursday did not disturb the FCC's power to impose decency standards, or even to punish stations that broadcast fleeting obscenities. What it did, in its unanimous decision in FCC vs. Fox Television Stations, Inc., et. al., was rule that the FCC did not give broadcasters fair notice it intended to punish such things before it fined 45 ABC-affiliated stations for airing nudity as part of a show, or before it found the Fox Network in violation for broadcasting obscenities during the Golden Globes.
That is a reasonable decision. In both instances, the FCC issued notice it intended to punish such things after the broadcasts had taken place. The notice of new rules changed standards, in place for many years, that punished only material that "dwells on or repeats at length" things that are offensive.
The problem, then, is that the FCC let its guard down in the years leading up to these incidents, establishing rules that easily could be exploited by producers and attention-seeking entertainers in the name of creative freedom.
In the wake of this decision, some have criticized the court for not ruling on the First Amendment aspect of the FCC's power to guard against obscenities. This, said Andrew Schwartzman, attorney for the Center for Creative Voices, will "chill artistic expression." That can hardly be taken with a straight face in an age when anyone with a cellphone and a vulgar tongue can artistically express to his heart's content to a worldwide audience on YouTube. The FCC has a legitimate purpose in drawing a line on such behavior where publicly controlled airwaves are concerned and when children are likely in the audience.
Fox issued a statement on that matter, saying, "Those issues remain for future litigation depending on what regulatory approach the FCC takes to these broadcasts in the future."
Pay close attention to those words. They make it quite clear the network intends on pushing the boundaries of decency. We hope the FCC, now that it clearly has given fair notice of its policies, will not back down.