Editorial: Split Decision

The Supreme Court ended the latest—but certainly not the last—
chapter of the never-ending indecency enforcement saga with
more of a whisper than a bang last week, though the whisper
was that the FCC had !@#$%ed up, and the indecency findings
and fines against Fox and ABC, respectively, were out of bounds.

It had always been a long shot that the court
would actually rule on the constitutionality of
the FCC’s underlying indecency enforcement
authority, which dates to George Carlin’s monologue
on analog radio some four decades ago.
But there was some hope that its pursuit of fleeting
indecency, a more recent diversion from so
many more pressing issues, would be ruled out
of constitutional bounds. They weren’t.

Don’t get us wrong. The Supreme Court’s decision
last week was a victory for Fox and ABC
(and should be for CBS). But it was a missed opportunity
to get the FCC’s blue nose out of the
media’s business.

The court found that the
FCC had not given broadcasters
sufficient notice that
swearing, or a naked backside,
would be indecent,
and so denied them due
process. But it went out of
its way to belabor how narrow
the decision was.

One plus is that the FCC
should now be able to dismiss
hundreds of thousands
of indecency complaints,
some of which have long
been holding up license transfers.

The decision should also be the death knell for
the government challenge to the Third Circuit decision
to throw out the FCC fine against CBS TV
stations for the Janet Jackson Super Bowl reveal.
The FCC and the Justice Department have asked
the court to reverse that decision, which was not
on First Amendment grounds. But since that case
was also about whether CBS had received fair
warning from the FCC that the broadcast could
be found indecent, there is no reason for the
court to hear that challenge.

Still, the court blew an opportunity to actually
clear up whether the FCC should be in the business
of regulating broadcast content, as though television
was the nation’s poster medium for uniqueness
and pervasiveness. The FCC and the White House
are almost single-mindedly focused on getting the
Internet into every home, even focusing on school
kids by promoting and encouraging cable industry
efforts to offer low-cost broadband to low-income
homes qualifying for school lunch programs. And
we know what you can get online.

Once that universal broadband deployment is
reached, and even at current penetration levels,
what sense does it make to regulate broadcast content
unless you apply similar constraints on the
Web? As hard as the FCC has fought in the courts
over the past few years to defend its content regulation
authority over broadcasting, it has argued
just as hard that it does not want to be in the business
of regulating online content. If there is something
wrong with the tame broadcast content the
FCC is trying to keep from kids, does that mean
it is trying actively to harm them by pushing unregulated
Internet content into every kid’s home?

And while ABC and Fox are off the hook, as
they should be, the FCC is free to enforce its old
regime, or some new variant. Though it is hard
to see how they can provide more guidance without
drawing the sort of bright lines that smack
of prior restraint. Ironically, the FCC was making
just that argument in defending its more “nuanced”
approach. Another option would be to
give broadcasters guidance by coming out with
some non-binding decisions on various indecency

But it already tried that. In fact, it did not fine Fox because it was part of a group of such
decisions under FCC chairman Kevin Martin that
were supposed to provide just such guidance.

The reason the FCC is having such trouble finding
a workable indecency enforcement regime
is that, by definition, content regulation requires
judgment calls that put unelected bureaucrats
(well-meaning, hard working, dedicated, yes all
of those) in charge of splitting pubic hairs (OK,
we can’t say that).

When there were only three networks and a
handful of UHFs reachable only with the sort
of dial manipulation employed by safecrackers,
maybe that kind of government force could actually
control what content kids had access to. Not
anymore and never again.

The FCC’s indecency enforcement regime was
initially upheld by the Supreme Court in the Pacifica
case on the grounds that broadcasting had “established
a uniquely pervasive presence in the lives
of all Americans” and was “uniquely accessible to
children, even those too young to read.” Trying
to defend that in the age of the Internet is a joke.

The Supremes have once again dodged a
constitutional question that eventually must be