First Amendment fans will be watching the Supreme Court closely Monday (Jan. 27). That is when the court is widely expected to announce that it has agreed to hear the appeal of Fox v. FCC, the lower court decision that found the FCC’s indecency enforcement regime unconstitutionally vague and chilling.
The High Court considered the appeal in its June 23 conference on appeals it is considering hearing.
Back when the Supremes upheld that regime on procedural grounds, without reaching the constitutional question, they signaled that they expected to see it again.
At stake is the FCC’s power to enforce indecency rules. It has a backlog of complaints that have been held pretty much in abeyance while it awaits clearer direction from the courts.
But it will like be a First Amendment two-fer. The court is also expected to rule on Brown (formerly Schwarzenegger) v. Entertainment Merchants Association, California’s overturned ban on the sale of violent video games to minors.
The National Cable & Telecommunications Association, National Association of Broadcasters, and the Motion Picture
Association of America all filed briefs in support of a lower court decision overturning the ban, concerned that if it were reversed, content regs on violent fare could spread to other media, like TV shows and movies.
“Protection of minors is admittedly a compelling state interest, but traditional First Amendment tests nevertheless
require - and should continue to require - that States identify a real problem to be addressed, as well as a carefully tailored solution to that problem,” NCTA said in its brief.
Since the video game industry has a ratings system, broadcasters are worried that a decision upholding the ban could give violent content critics more ammunition to go after violent TV content, weakening broadcasters argument that parents already have a less restrictive means of restricting kids access to violent content.
“The video game industry, like the television industry, has adopted a voluntary and widely used rating system for video games, supported by technology that allows parents to limit a child’s access to games based on the ratings,” said NAB in its letter. “The California regulatory scheme simply ignores this less restrictive approach to achieving its putative goal of child protection. In so doing, it runs roughshod over the First Amendment rights of content producers, retailers, and consumers.”