Editorial: Split Decision

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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 complaints.

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 answered.

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