Justices don’t call ‘strike 3′ on FCC

Thursday, June 21, 2012

Those ultimate legal umpires, the U.S. Supreme Court justices, called neither “strike three” nor an out today in the long-running national pastime of deciding what is OK to show on broadcast television.

From the perspective of a TV fan — sitting in the living room bleachers, as it were — this contest has gone on inning after inning for nearly a decade, in the ultimate playoff series between TV executives and government regulators that goes back even farther.

The Court held in deciding FCC v. Fox Television Stations that the Federal Communications Commission was wrong to reprimand the Fox network and ABC-TV for airing “fleeting expletives” and brief nudity on programs in 2002 and 2003. But it avoided the direct First Amendment free-speech issues in the case. Instead, the Court said the networks didn’t get proper notice of the regulations they were supposed to observe.

The justices stopped short of what broadcasters hoped would be a video-review home run — a rejection of the government’s overall authority to impose decency standards on broadcast programming. Instead, the decision was rooted in the technical but important matter of having sufficient notice to know when one is violating the law.

After lengthy discussion of the varying FCC policies and approaches to what broadcasters can permit to be said or shown, Justice Anthony Kennedy wrote for the Court in conclusion that “this opinion leaves the Commission free to modify its current indecency policy in light of its determination of the public interest and applicable legal requirements.”

You can read that as an open invitation to play another game — or at least to step to the plate for some serious batting practice.

There was one called strike against the commissioners. Justice Ruth Bader Ginsburg, while agreeing with the main opinion, wrote that the Court should take new technologies into account and just overturn the 1978 ruling that underlies the entire FCC indecency policy. That case, FCC v. Pacifica Foundation, involved the late George Carlin’s “Seven words you can’t say on television” comedy routine.

Kennedy’s closing words also keep the playing field open for other courts, leaving them “free to review the current policy or any modified policy in light of its content and application.”

Score it “one” for Fox and ABC, who are now out from under the FCC’s original ruling. But FCC backers weren’t shut out. The ruling did not disturb the commission’s authority, rooted in decades-old doctrines about the public’s ownership of the airwaves, to declare that “you can’t say or show that” on broadcast channels.

Play ball!

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