Editorial: Broadcast on the Offensive

1/16/2012 12:01:00 AM Eastern

Last week, broadcast lawyers made their Supreme Court oral
arguments challenging the government’s apparent fear of naked
buttocks and breasts, while high above them, the walls of that neoclassical
temple to Justice were adorned with half-naked figures
displaying the same unveiled equipment, as it were. The irony
was not lost on the lawyers.

It reminded us a little of the Justice Department
under former Attorney General John Ashcroft
hanging blue drapes to cover two large semi-clad
art deco statues back in 2002. It would be funny
if it weren’t so sad.

The government needs to get its knickers untwisted
over its fixation with naughty bits, as Monty
Python would put it, and allow broadcasters at least
a little more room to navigate the digital world.

It is likely too much to ask for the Supreme
Court to rule that broadcasters should have the
same full First Amendment rights as newspapers
or magazines or cable or satellite
or the Internet or the "Cool, He-
Man Secret Pirates Club" newsletter
produced by third-graders
on a laptop after school.

Several of the Justices seemed to
indicate their unease at a too-free
media in oral argument last week.
Associate Justice Antonin Scalia,
for example, said he thought that
a "modicum of civility," which he
appeared to associate with not allowing
swearing or nudity in the
so-called safe harbor—6 a.m. to
10 p.m.—was a reasonable quid
pro quo for holding a broadcast
license. And Justice Anthony
Kennedy said he thought there was some symbolic
value in different First Amendment standards for
broadcast TV than its competition. Perhaps, but
what it symbolizes for us is a failure to recognize major
changed circumstances in the media, like the rise
of unregulated media right next door on the cable
lineups or in over-the-top services coming to a TV
set or smartphone near you, if the Federal Communications
Commission has anything to say about it.

Of course, broadcasters, at least those represented
by the National Association of Broadcasters, are
not looking for full First Amendment freedom
because they recognize the public interest quid
pro quo that is some shield from the FCC’s acquisitive
gaze when it comes to their spectrum.
They just want a less arbitrary standard and a
better sense from the court of what the FCC is
going to find indecent at any given moment. On
that score, several Justices indicated they were
in agreement.

Justices Elena Kagan and Ruth Bader Ginsburg
were the most vocal in their puzzlement, though
as with oral argument in general, judges may be
playing devil’s advocate to test the strength of the
argument or the arguer.

But both Justices seemed as confused as broadcasters
about the fact that the FCC would find
seven seconds of naked butt on NYPD Blue indecent,
but not 40-plus seconds of nudity, including
full frontal nudity, in Catch-22. Ginsburg
said that smacked—she used a gentler term—of
arbitrariness. Kagan suggested that by the FCC’s
reckoning, the only person who gets to swear on
TV is Steven Spielberg. But even Kagan said that
the government had more “leeway” on indecency
given broadcasters’ government license.

Recognizing that the court is unlikely to free
broadcasters of indecency regs entirely (though
Fox’s lawyer tried to make that case), ABC’s attorney
said that the court could at least require the
FCC to apply a consistent test, and be required
to better explain itself. That would be half a loaf,
but it’s at least more than the agency is doing now.

We continue to advocate for full First Amendment
rights for broadcasters because of their status,
confirmed by FCC and independent studies, as
the primary local news and information medium.
While the FCC generally makes an exception for
news broadcasts, there is not carve-out from indecency
for those broadcasts, and the definition
of what is and isn’t a news show can be another
gray area. So, while the First Amendment could
not be clearer about the government not abridging
the freedom of speech or the press, the indecency
rules do both, and ostensibly to protect children,
who would be better served by the government
focusing instead on how they can ultimately get
jobs, health care and retirement benefits.