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The Supreme Court on Tuesday is scheduled to hear arguments on a case that could dramatically change the rules regarding indecency and profanity and, conceivably, open the way to X-rated content on broadcast television. Yes, I know that seems like an overstatement today, but broadcasters will do anything for a buck. I know, I’ve been one. Just wait-and-see.
Broadcasters allege the Federal Communications Commission is violating the First Amendment by imposing fines for on-air indecency. The case relates to fines issued for expletives uttered on awards shows by Nicole Richie and Cher on FoX and a scene involving a nude actress on NYPD Blue, broadcast by ABC television.
The two networks, joined by NBC and CBS, are asking the court to overturn a 34-year-old ruling that allows the FCC to regulate broadcast profanity and indecency. Cable and satellite television and the Internet are outside the FCC’s control, however, and that is part of the problem.
The networks say, with justification, that the rule isn’t fair. And even if it was fair three decades ago, changes in how television content is delivered have changed how the medium is used. Back then, the FCC used the justification that radio and television were “uniquely accessible to children” and had a “uniquely pervasive presence in the lives of all Americans.”
It is hard to say either of those still exist, certainly not like they did in 1978. The fines are based on the court’s ruling in a case that sanctioned a radio station for broadcasting the late George Carlin’s “Seven Dirty Words” routine.
Quoted by Bloomberg, the American Civil Liberties Union is supporting the broadcasters:
‘It just doesn’t make sense to say one rule applies to everything else and then say one special rule applies to broadcast television,’ said Steven Shapiro, legal director of the ACLU.
If the ruling falls, the very real danger is that broadcast television will become rife with the nudity and profanity — including 24-hour adult channels — that already inhabit cable, satellite and the Internet. While I don’t have a problem with that, in limited doses, but believe we need some safe harbors for family viewing and the FCC should be the enforcer.
Former FCC Chairman Michael Powell shares my belief that cable and satellite content should also be subject to FCC enforcement, telling Bloomberg:
‘I’ve always been deeply troubled by the way the First Amendment changes when you change channels.’
Powell is now president of the National Cable & Telecommunications Association, the cable industry trade group. I wonder if his members would be pleased if FCC indecency and profanity rules applied to them?
The FCC and Obama administration are defending the ruling, on the basis that parents still look to broadcast television as safe viewing for children and families. The administration has told the court that the expansion of non-regulated content actually makes the regulated content more important.
Remember the Fairness Doctrine?
If the FCC loses here — as I expect — it will be the biggest change in broadcast content regulation since enforcement of the Fairness Doctrine, which required broadcasters to present both sides of controversial issues, stopped in 1987. With that wall torn down, the way was opened for right-wing talk radio to populate, first, dying AM radio stations and then go mainstream.
Others dispute this, but I trace today’s hyperpartisian political climate to the ability of the right to use radio and TV to organize, cheerlead and whip people into a conservative frenzy. When the Fairness Doctrine was in play, Rush Limbaugh — as he now exists — was impossible because of the FCC requirement to present both sides. Indeed, a program could cover the same topics that conservative radio does today, but without the partisan host and with both sides on at the same time. That can make for pretty boring radio, at least compared to the conservative hosts.
How will the Supreme Court rule?
The Court has already struck down restrictions on violent video games, political spending and prescription drug marketing. It seems logical that the indecency and profanity rule will go away, too.
It seems odd that a majority conservative court would support indecency and profanity, but if violent video games for children are OK, what isn’t? (I would make the case violence is more damaging to kids and society generally than nudity or profanity, but that’s for another column.)
My prediction: Ruling falls and slowly the TV networks will come to fully mimic their cable, satellite and Internet cousins. While I don’t expect ABC/CBS/NBC/Fox to go to overnight porn, it would surprise me if some enterprising independent broadcaster did not. Especially if it could be done on a secondary channel. I am not clear on how easy it would be to prevent accidental viewing of this content.
In mainstream programming, I’d expect to see a great increase in somewhat vulgar talk and a big increase in near-nudity. Not so much sex, but a sexed-up “Pole Dancing With The Stars” and other game and reality shows.
Many will think ‘more sex on TV’ is a good thing and I don’t object so much on moral grounds — watch whatever you want — but I think an excess cheapens culture and reduces quality of life.
And if this ruling falls, will tobacco advertising soon return to the airwaves? Hard liquor ads start showing up? Corporate freedom of speech, you know…
If you want to know more, here’s a link to an excellent Washington Post story.
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