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Editorial: Second to None

7/19/2010 12:01:00 AM Eastern

Three cheers for the Second Circuit Court of Appeals, which last week told the FCC in no uncertain terms that its indecency enforcement regime is indecipherably vague and consequently chills speech. The issue was the FCC’s fi nding that swearing on Fox awards
shows was indecent. The Second Circuit had initially ruled the decision
arbitrary and capricious on procedural grounds. The Supreme Court disagreed
and sent the case back to the circuit court to take a second look.

On remand, the court delivered a decision right on constitutional point,
which should tee up the decision for eventual Supreme Court consideration
of the constitutional question. The Supremes did not reach that
question because the Court could rule on the procedural issue (courts
don’t generally go to constitutional questions if cases can be decided on
lesser grounds). Now that question will be squarely in their sights.

Last week’s conclusion has seemed obvious to many since the FCC’s
Alice in Wonderland decision to reverse itself and conclude that swearing
on TV, even in the excited heat of the moment, is indecent, except when
it’s not. And even though they wear robes and sit slightly above the rest
of us, these judges seem to recognize that the world has changed in the
last 30 years. The FCC promotes this position when talking about the
technological changes requiring spectrum reclamation, but conveniently
forgets when trying to justify an indecency policy that, if it ever made
sense, certainly does not now.

The Supreme Court in the Playboy case ruled that cable operators’ ability
to block channels was a more narrowly tailored solution than government
regulation. The Second Circuit said last week that it thinks broadcasters
should be able to invoke a similar argument. “We can think of no reason
why this rationale for applying strict scrutiny in the case of cable television
would not apply with equal force to broadcast television in light of the V-chip
technology that is now available,” the court said. Make that four cheers!

Now all we need is for the Third Circuit to come back with its decision
on the remand of the FCC’s fine of CBS over the Janet Jackson Super Bowl
reveal. The FCC may well wait to see what happens there before acting,
but either way the Supreme Court should get a crack at rectifying years
of chilled speech.

In the meantime, don’t look for big changes in programming. Broadcasters
will continue to program to their audiences and occasionally push
the envelope either accidentally or on purpose, just as they should under
the protection of the First Amendment.