The Supreme Court is ready to hear arguments challenging the authority of the Federal Communications Commission to regulate broadcast content when it reconvenes later this year. Are the floodgates about to open for a deluge of bare breasts, butts, and bad language in prime time?
Probably not. Here's why.
(Note: some of the links from this blog entry are NSFW, depending on where you work.)
First, some background. In general, the First Amendment to the U.S. Constitution protects the right to free speech. The major category of unprotected speech is obscenity — legally defined as offensive material that appeals to "the prurient interest" and lacks serious value. But a 1978 Supreme Court decision in what's become known as the Pacifica case found that the FCC could prohibit the broadcast of material that was not obscene but merely "indecent" or "profane." (The tipping point was a NYC broadcast of George Carlin's famous "Filthy Words" routine.) The Supremes ruled in a split 5-4 decision that the government had a compelling interest in protecting children from such material.
The gist of the ruling was that broadcasters could be punished for airing indecent material between the hours of 6 a.m. and 10 p.m., because those times were when it was thought to be likely that children were in the viewing or listening audience. Radio and television stations face monetary fines when they let certain words or images slip out over the airwaves during those hours.
The main problem is that the indecency rules are pretty vague. Broadcasters are never quite sure exactly where the line is. Efforts by the FCC to clarify the rules have been unhelpful. For example, the FCC spelled out policies in a 2001 document that seemed to clearly indicate that a "fleeting and isolated utterance" in the context of "live and spontaneous programming" wouldn't warrant sanctions. But then, just a couple of years later, the FCC was slapping the likes of Cher and Paris Hilton for spewing blue on live, televised award shows. Fox and other broadcasters fought the fines in court, arguing that the FCC was changing its policy arbitrarily. The case has been tied up in court ever since — in April 2009, it finally made it to the U.S. Supreme Court, which upheld the FCC's policy reversal but refused to address the fundamental constitutionality of the restrictions, sending the case back to a lower court, which eventually struck down the policy altogether. Similarly, a $1.2 million fine levied by the FCC over a few seconds of Charlotte Ross seen mostly naked in a 2003 episode of NYPD Blue was struck down earlier this year by a New York appeals court on the grounds that the FCC's policy on nudity is unconstitutionally vague.
But when the Supreme Court re-convenes in October, it will finally take on the constitutional issues inherent in FCC v. Fox. Given the court's strong history of defending free speech (see this week's ruling in which it declared unconstitutional a law that restricted the sale of violent videogames to children in California, or previous rulings in which it refused to let Congress regulate indecent material on the Internet), it's entirely possible that the court will see fit to restrict — or even do away with — the FCC's power to regulate indecent speech on television. At the very least, the ruling should clarify where the line is, in case showrunners want to spend their time dancing just this side of it.
If the Supreme Court does decide the FCC lacks the authority to regulate broadcast speech, will we see an explosion of nudity and profanity in prime time? Unlikely. Remember, even if the networks didn't have to pay attention to FCC regulations, they'd still have to listen to their advertisers — a notoriously prickly lot when it comes to the kind of controversial content that generates threats of boycotts — and affiliates. A Salt Lake City NBC station recently said it would refuse to air new fall series The Playboy Club, apparently reacting solely to the use of the Playboy brand in the show's title, rather than any concern about specific offensive content.
Also consider this — the hours from 10 p.m. to 6 a.m. are considered a "safe harbor" during which broadcasters can air indecent content without fear of FCC retribution. But how much indecent material do you remember seeing on network affiliates in the middle of the night? The CBS Standards and Practices Department has plenty to say about the language used by David Letterman and his guests, even though Letterman has no fear of getting busted by the FCC. (I remember once, just once, when CBS inexplicably allowed Will Smith to say "holy shit" without cutting his audio. It startled me so much I suddenly sat bolt upright on my couch and ran the DVR backward to make sure I hadn't been dreaming. Yep, there it was. I haven't heard that kind of language on Letterman since.)
Even basic cable channels, which are not regulated by the FCC, tend to play by the same rules. Comedy Central occasionally lets South Park push the profanity envelope, but aggressively bleeps Jon Stewart if he tries to use the same words on The Daily Show. (Stewart explained on a recent episode that it has to do with the fact that South Park runs only at night, while The Daily Show is replayed during daytime hours.) For a while CC heavily promoted something called "the secret stash," late-night uncensored rebroadcasts of some movies, specials, and other programming — unsurprisingly, these special shows often aired beginning at 1 a.m. ET, which would be the first hour of safe harbor on the west coast. It's all about the demos, of course. The kind of viewer who's tuned to Comedy Central at that hour is unlikely to be put out by a helping of foul language.
MTV pushed the boundaries this year with the debut of Skins, a show about bad teenaged behavior that's adapted from a more-explicit British original. Even in a toned-down version with a ton of promo money sunk into it, Skins proved to be too daring for U.S. audiences — or at least U.S. advertisers — and was canceled after a single season.
So based on the behavior we've seen by channels — even the edgier ones, like MTV and CC — if the Supremes do relax or abolish the FCC's control over broadcast content, we can expect the increased explicitness of shows to be modest at best — maybe a few more backsides and the occasional S-word, NYPD Blue-style, and probably limited to the third and final hour of prime-time programming. It will be interesting to see how far they might push the envelope. But the networks know from experience that it's not hard to generate a campaign urging sponsors to pull their ads from a given show, and they won't want to kick that hornet's nest.
TV gets a bad rap in some circles but broadcasters are, by and large, a pretty responsible bunch. If restrictions on broadcast content are, in fact, loosened up, it'll be interesting to see how they take advantage of the new freedom.
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