For years, broadcasters have been tiptoeing up to the edge of First Amendment freedoms, only to settle for the safe harbor of their special public-interest status when they are looking for help from the government.
The National Association of Broadcasters (NAB) last week sought only “clarity” from the Supreme Court after the Supremes made the surprise decision to hear the appeal of the FCC's profanity ruling against Fox. What broadcasters should have asked for was the freedom to set their own rules according to the dictates of their conscience and the needs of their audience.
Earlier, the Second U.S. Circuit Court of Appeals smacked down the FCC's explanation for its fleeting-profanity rule. But then the commission appealed to the Supreme Court. The FCC's indecency rules are a crazy quilt that no one, even at the FCC, seems perfectly able to decipher. Chairman Kevin Martin welcomed the Supreme Court review, noting that the earlier appeals court decision left the commission in the position of enforcing indecency rules without a clear idea of what they were. Had the Supremes not taken the case, the FCC would have been forced to either scrap the new policy or try to justify it to a court that already suggested that would be next to impossible.
But now that the High Court has decided to weigh in, it is the best opportunity in decades for broadcasters to secure their rightful place alongside the print press as an unfettered check on government rather than be circumscribed by the dictates of regulators. The country was founded on the principle that it was more problematic for the government to decide what we should see and hear than for the press to be allowed to make mistakes, including misjudging or offending its audience.
That's why it disappoints us that the NAB isn't taking a more forceful stance, fighting not just for clarity about the rules. The NAB should be questioning the legitimacy of the rules altogether. Even the FCC understands that idea, to a point. After all, broadcasters have for years been allowed to swear with impunity and air anything short of outright obscenity between 10 p.m. and 6 a.m. They don't do that because they are responsible to their viewers and advertisers.
The government has an interest in protecting children, which is the excuse always used for micromanaging media content in a manner unthinkable for the print press. But what the public needs protection from most is a government that could control their access to ideas and information. That is far more damaging than an occasional cuss or flash of birthday suit.
The Supreme Court should crush the fleeting obscenity rule, but it should go much further than that and conclude that it is time for the government to stop meddling in broadcast content.
Broadcasters must serve the public interest but the Supreme Court has an obligation to serve that public's interest, too. In this case, that would be by squaring the law with the reality of the times: that a broadcaster deserves to be as free as competitors in print, cable and the Internet.