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The FCC's decency dilemma

The latest court ruling shows the futility in trying to set, and enforce, what can and can't be said on broadcasts.

July 14, 2010

A federal appeals court has delivered another setback to the Federal Communications Commission's six-year crusade against expletives on broadcast television, declaring the commission's latest indecency rule to be unconstitutionally vague. Unless it's overturned on appeal, the ruling will force the FCC to try again to lay out clear boundaries for on-air programming. That's been an exercise in futility for the commission in recent years — not just because it's hard to regulate TV programs without violating the 1st Amendment, but because today's technologies render even constitutionally defensible regulation moot.

Federal law prohibits obscene, indecent and profane language on radio and television broadcasts, and the commission is under considerable political pressure to keep the public airwaves free from shockingly offensive material. But it went off the rails in 2004, holding that even fleeting use of selected profanities was verboten between 6 a.m. and 10 p.m. Congress also multiplied the maximum penalty for violating the indecency rule by an order of magnitude, turning a single transgression in a widely aired program into a potential multimillion-dollar fine.

The Supreme Court upheld the FCC's procedures last year, leaving the constitutional issues for a later day of reckoning. That day arrived Tuesday, and the 2nd Circuit Court of Appeals' opinion was blistering. The three-judge panel found that the rule has chilled protected speech, including live broadcasts and news programs. Broadcasters have "no way of knowing what the FCC will find offensive." More ominously, the court suggested that the way the rules were drawn, the FCC could use the policy to discriminate against programs it didn't like while absolving ones it did.

The 32-page opinion illuminates how difficult it is for the commission to enforce the statutory prohibition on broadcast indecency. In the late 1980s, the FCC shifted from a prohibition on specific profanities ( George Carlin's seven "filthy words") to a more flexible ban on "patently offensive" language. But according to the appeals panel, that flexibility has rendered the FCC's enforcement actions unpredictable and, potentially, prone to abuse. Under the commission's formulation, only it can know which words in our ever-evolving lexicon would be deemed "patently offensive," and in what context.

Rather than trying to justify such a highly subjective regulatory scheme, the commission should return to the restrained approach it took in previous decades. Broadcast networks are no longer dominant, inescapable media voices. Besides, the FCC can't shield children from inappropriate programs — it has no authority over cable TV channels, and it can't stop kids from using DVRs or the Internet to watch late-night programming in the middle of the day. Happily, parents now have better tools for blocking programs they don't want their children to see. The FCC would be better off promoting those tools than trying to micromanage what's said on the airwaves.

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