We don’t expect millions of Americans to flock to C-SPAN Wednesday at 9:15 p.m. to watch a courtroom proceeding. But they should.
The U.S. Court of Appeals in New York City agreed to let C-SPAN televise the Dec. 20 hearing, in which the FCC will attempt to defend indefensible indecency policies. Rightly, they are being challenged by NBC and Fox, which argue that the policies are nonsense.
The FCC is preoccupied with TV language and sexuality. But the more their lawyers try to make indecency regulations make sense, the more they seem like something out of Alice in Wonderland. This rank piece of regulatory sausage should get fried in the Second Circuit.
Fox, in its filing, complains that the FCC’s rules are “incurably arbitrary.” NBC written briefs concluded that some of the most infamous recent indecency rulings are “contrary to common sense, conventional wisdom and ordinary usage.”
For example, the FCC has most recently decided that “fuck” has an implicit sexual meaning regardless of how it is used. Which, NBC then pointed out, meant that, when Cher upbraided her critics on a live telecast of the Billboard Awards by exclaiming, “Fuck ‘em,” that’s what she meant. Yet, “no reasonable observer,” as NBC pointed out, “could actually conclude that Cher was exhorting the audience to have sexual activities with those critics or that her comment related somehow to sexual organs.”
The FCC claims with new vigor a mandate to protect viewers while rejecting the V-chip. But that’s the content-blocking device the agency once told Congress was the best way for parents to control their kids’ TV diet. Now the FCC says it needs to help parents do their jobs better. Big Brother has become Big Father and Mother.
This case is not about rich superstars acting crudely. It’s about the ability of television stations to exist in the real world, where, sometimes, people swear. It is about the people’s freedom from a sanitized, government-issue view of the world driven by a computer-enhanced minority of well-meaning censors.
C-SPAN has indicated it would make the footage available to others. At last check, nobody had asked to air it. That may just be because they haven’t started planning for next week yet. We hope so. Every broadcast network should air the arguments—and every schoolchild the FCC professes to be protecting should watch it as a civics lesson.
The outcome, either way, will have a huge impact on what the government will let the people see and hear over the people’s airwaves.