Justices to ponder full First Amendment freedom for broadcasting

Monday, January 9, 2012

WASHINGTON — Is the Supreme Court ready to give broadcasters the same First Amendment freedom that newspapers, cable television and the Internet enjoy?

Oral arguments set for tomorrow in the case of FCC v. Fox Television Stations may offer clues to how the Court may answer that question, as the justices hear debate over the constitutionality of the FCC’s regulation of broadcast indecency.

The arguments are the latest chapter in a long-running dispute over Bush-era regulations clamping down on networks and stations that broadcast fleeting expletives and brief, even partial nudity. Broadcasters initially challenged the rules as an arbitrary and unjustified change in policy, an argument the Supreme Court rejected in 2009. The case returned to a lower court for a determination of the regulations’ constitutionality. In 2010 the 2nd U.S. Circuit Court of Appeals found the rules “unconstitutionally vague” and unjustified in part because of new technology.

Now the FCC will argue that the regulations are a constitutional way of furthering the government’s “compelling interest in protecting children.” Solicitor General Donald Verrilli Jr., who as a private practitioner sometimes represented telecommunications companies, will defend the regulations.

For their part, lawyers for Fox and the other major networks will attack the rules again as unconstitutionally vague, chilling directors and broadcasters who don’t know which shows will or won’t get them in trouble. For example, they note that broadcasters who aired the movie “Saving Private Ryan” were not fined under the rules, even though the word “fuck” is uttered several times. But when U2’s Bono and the singer Cher used the same word during separate award ceremony programs, broadcasters were fined.

But the broadcast industry is gambling that the Court is ready not just to overturn the indecency regulations, but also to re-examine the entire rationale it has long used to justify more restrictions on broadcast speech than it would permit on newspapers and other forms of expression, from pamphleteers to the Internet.

In cases including Red Lion v. FCC (1969), and 1978’s FCC v. Pacifica Foundation, tighter regulation of broadcasters was justified because of a scarcity of broadcast frequencies and because of the pervasive nature of television and its unique access to children. All of those premises are obsolete, according to briefs filed by the broadcasters.

“Pacifica’s foundations were built on sand,” wrote Carter Phillips, who will argue tomorrow on behalf of the Fox stations. With more than 85% of American households subscribing to largely unregulated cable, satellite and Internet services, broadcast television is no longer uniquely pervasive. As a result, Phillips said, there is “no constitutionally relevant distinction” among broadcast television, cable and Internet media. Former Solicitor General Seth Waxman will also argue on behalf of broadcasters in the case.

In addition, broadcasters argue that because of blocking technology like the v-chip, which permits parents to screen out certain programming, broadcast television no longer has unique, wide-open access to children.

“Technology has changed and so has First Amendment doctrine and American culture,” said University of California Irvine School of Law Dean Erwin Chemerinsky in a recent National Law Journal commentary. “It now is much more clearly established that there is a strong presumption against government regulation of speech based on its content. And, for better or worse, profanities are more a part of everyday discourse.”

But the government insists that the pervasiveness and access arguments are still valid, noting that nearly 20 million households still do not subscribe to cable or satellite services. Even in cabled households, Verrilli’s brief points out, many TVs in children’s bedrooms don’t have cable connections.

Justice Clarence Thomas has hinted more than once that he thinks the precedents that are used to justify broadcast regulation have “questionable validity” and need re-examination. Other justices, including Ruth Bader Ginsburg, have said those precedents should be narrowly interpreted.

But whether the full Supreme Court will take the big step toward equivalency for all forms of media under the First Amendment is uncertain.

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