Out of Control Policy Blog

Itís First Monday in October

The U.S. Supreme Court opened its new term today. While a tobacco lawsuit on product labeling was first up (with implications for commercial speech), media policy analysts like me are looking ahead a month. On Nov. 4, the high court is scheduled to hear oral arguments in FCC v. Fox Television Stations, which will mark the first time in some 30 years the Supreme Court has taken up broadcast regulations on decency and language. That 1978 case, FCC v. Pacifica Foundation, which arose from Pacifica's New York station, WBAI, airing of George Carlin's "seven dirty words" sketch, gave the commission authority to regulate broadcast content when it has reason to believe children might be in the audience.

The current case stems from actions the FCC took against NBC and Fox network affiliates for airing expletives during live broadcasts of separate awards shows. After the commission muddied its own case by first ruling the language--in the context it was used--was not indecent, then reversed itself in the wake of what critics said was pressure from Congress, Fox sued. In June 2007, the 2nd U.S. Circuit Court of Appeals in New York vacated the FCC indecency policy in a 2-1 vote, calling it "arbitrary and capricious under the Administrative Procedure Act." The U.S. solicitor-general then appealed the verdict on behalf of the FCC.

Speaking on a panel on content regulation at last week's National Digital Policy Conference at Ball State University, Kimberly Zarkin, associate professor, communication, at Westminster College in Salt Lake City, Utah, said it the Court would not have taken the case unless it had an eye toward crafting a new broadcast decency test. Although she found it difficult to speculate on the outcome, she said she feared it would be more intrusive given the current conservative bent of the Court. (Although if Roberts, Alito, Scalia and Thomas are the constructionists they are reputed to be, the outcome may yet surprise those who have them pegged as "conservatives.")

The case deserves to be discussed in the context of whether, in this day and age, government has any role in regulating content. But that discussion is likely to be off the table. The result will likely be a ruling that keeps things as they are or, worse, opens the door to allowing FCC regulation over programming on basic and premium cable. Programming here, ranging from F/X's The Shield to Showtime's Weeds, are subject to much looser regulations (pay channels virtually none). Yet FCC Chairman Kevin Martin has made no secret of his desire to extend decency rules to these services.

To most Americans, the difference between cable and broadcast is fading. The digital TV transition is going to drive more viewers to cable services, whereby the local Fox affiliate joins F/X as just another channel selection. The FCC and the nanny-staters might not like to hear it, in a day and age of pervasive media the responsibility for blocking and filtering content comes down to the individual household. Adam Thierer at the Progress & Freedom Foundation has done some great work on the tools available to parents and how easy they are to use. As a parent of a five-year-old I can sympathize with the challenge but attest to its being the most effective solution.

As Zarkin pointed out, with the number of viewing choices out there, there's always going to be something on TV, or online, that's going to offend someone. The problem is that different things offend different people, and, from a legal and constitutional point of view, it's ever more troublesome to attempt to regulate TV content from a central point.


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