Last week, the Federal Communications Commission, by taking a step back, gave itself the chance to take a crucial step forward.
The U.S. Court of Appeals for the Second Circuit in New York gave the FCC the 60 days it asked for to reconsider its four indecency findings against broadcasters, all of which involved instances of fleeting profanity. Those are the same decisions the FCC a little while ago was using as examples of its new profanity standard. The FCC characterized the court's decision as a victory because, by its lawyers' reckoning, the judges didn't strip the commission of its ability to crack down on all cussing. But the practical effect will be to muzzle the profanity bloodhounds for awhile.
We see the court action differently. The court, by issuing a stay on enforcement of the decisions, in essence was signaling that the FCC doesn't have firm First Amendment turf to stand on.
It might take forever for the FCC to figure out the simple truth. There is already a mechanism for insuring that broadcast speech serves its viewing public: Let broadcasters program to their audience. They know them best.
For a long time, broadcasters have been allowed to air entire sex acts after 10 p.m. without running afoul of the law. They don't do it—ever—because they know their audience and advertisers, and they know what they want. Broadcasters are hardly libertines. After all, it took television nearly 30 years to allow the mere sound of a toilet being flushed in primetime.
We'd prefer there to be no content regs. They are impossible to define except as what FCC staffers or three of five commissioners think they are. That should not be the system that controls what a supposedly free media says.
But we live in the real world. The courts need to clearly step up and inform the FCC and the public that freedom of speech also allows us to occasionally offend. The FCC should lighten up. In fact, that's the way the FCC acted before the politics of censorship prevailed.
What the profanity stay says is that the court believes broadcasters have a reasonable likelihood of winning their challenge to the FCC's rules and that to continue to enforce those rules in the meantime could cause irreparable harm. We agree.
Indecency rules that allow the FCC to decree that saying “bullshit” on broadcast TV is indecent while “dickhead” isn't—and yes, they have ruled that way—are ludicrous.
We advise the FCC to take an indecency sabbatical while it figures out its next step. Then it should take a giant leap in the direction of free speech.