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"FCC v. Fox: Does Government Censorship of Broadcast Television Still Make Sense?" by Brian Farkas

FCC v. Fox: Does Government Censorship of Broadcast Television Still Makes Sense?

by Brian Farkas


Last month, the Supreme Court heard oral arguments in a case that demonstrates how the law struggles to adapt to changes in technology. In Federal Communications Commission v. Fox Television Stations, et al. (docket 10-1293), the Court is considering whether the FCC's indecency-enforcement regime violates the First Amendment or Fifth Amendment to the Constitution, and whether that regime is too vague to be constitutional.

The FCC defines indecency as "language or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities or organs." Broadcast Services; Enforcement of Prohibitions Against Broadcast Obscenity and Indecency in 18 U.S.C. 1464 on a Twenty-Four Hour Per Day Basis, 53 FR 52425-02. This definition, critics argue, is too hazy, and thus allows the FCC to become the ultimate arbiter of appropriate "community standards." The vagueness problem recalls Justice Potter Stewart's classic line on pornography--"I know it when I see it." Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring).

The Court is now hearing two combined cases involving the FCC's fines of broadcast stations for airing "indecent" material. The first dispute centers on expletives used by Cher and Nicole Richie on awards shows seen on News Corporation's Fox. The second centers on a scripted scene featuring a partially-naked actress on "NYPD Blue," aired on Walt Disney Company's ABC.

Such monetary fines can be significant. The FCC can levy a $325,000 penalty on each station that airs "indecent" material between 6 a.m. and 10 p.m. See Obscenity, Indecency and Profanity, FCC, available at http://www.fcc.gov/guides/obscenity-indecency-and-profanity. In the "NYPD Blue" case, for example--where the audience briefly sees actress Charlotte Ross's buttocks and later her bare chest--the FCC sought to impose penalties totaling $1.2 million on more than 40 ABC-affiliated stations. See Greg Stohr, TV Indecency Crackdown by FCC Gets Support at High Court, BLOOMBERG BUSINESSWEEK, Jan. 13, 2012, http://www.businessweek.com/news/2012-01-13/tv-indecency-crackdown-by-fcc-gets-support-at-high-court.html. This was hardly the first instance of such massive fines. In 2004, the FCC fined CBS Corporation $550,000 after Janet Jackson's breast was exposed during the Super Bowl. CBS Corp. v. FCC, 535 F.3d 167, 172 (3d Cir. 2008). In 2006, the FCC announced a $3.6 million fine against 111 television stations that aired a 2004 episode of CBS's "Without a Trace" depicting a teen orgy. Stephen Labaton, TV Networks, With Few Friends in Power, Sue to Challenge FCC's Indecency Penalties, N.Y. TIMES, Apr. 17, 2006, at C3.

With such significant financial consequences in the background, networks began to challenge the FCC's standards. The current case before the court represents the broadest effort thus far to eliminate such regulations entirely on constitutional grounds. Fox and ABC are challenging the constitutionality--and implicitly, the rationality--of indecency regulations in the 21st century. They are urging the Supreme Court not only to uphold a lower court's rulings in their favor, but to reconsider a foundational 1978 case that approved content-based regulation of broadcasting on the grounds that the medium was uniquely pervasive and uniquely accessible to children.

After a brief background on the development of the FCC's indecency regulations, this article will analyze the briefs on either side of the Fox case and pose questions about the place of such regulations in today's saturated media landscape. In a Supreme Court term filled with precedent-making cases, FCC v. Fox could have a major impact upon regulation of broadcast television.

Background: The FCC and Censorship

On first glance, it might seem almost surprising that the United States government would engage in censorship. After all, the country prides itself on open expression. But while the First Amendment declares that "Congress shall make no law... abridging the freedom of speech," whole categories of expression are actually carved out of protectable speech. Courts have held that defamation, fraudulent misrepresentation, and incitement to violence are all categories of speech that can be punished. See Ashcroft v. Free Speech Coalition, 535 U.S. 234, 245-46 (2002).

Broadcast is another such category. Originally enacted as part of the Radio Act of 1927, Section 1464 of the United States criminal code provides that "[w]hoever utters any obscene, indecent, or profane language by means of radio communication shall be fined under this title or imprisoned not more than two years, or both." 18 U.S.C. § 1464; Radio Act of 1927, ch. 169, § 29, 44 Stat. 1162, 1172-73. There was little enforcement activity in this area between its passage and the 1960s and 1970s. See Jerome A. Barron, FCC v. Fox Television Stations and the Fcc's New Fleeting Expletive Policy, 62 FED. COMM. L.J. 567, 568 (2010).

A foundational case supporting indecency regulation came in 1973 when one of Pacifica Foundation's radio stations broadcast George Carlin's monologue "Filthy Words." Carlin--in a purposeful, comedic attempt to critique the FCC's censorship--repeated a list of "words you couldn't say on the public airwaves." He "repeated them over and over again in a variety of colloquialisms," many of which vividly evoked sexual or excretory images. See F.C.C. v. Pacifica Found., 438 U.S. 726, 729 (1978). A full transcript of the broadcast is available online (note that there is no prohibition on reprinting this entire broadcast online, with all of the "words you can't say" present). One parent, driving with his son, heard the broadcast and wrote a letter complaining to the FCC. Though Pacifica defended the monologue as a program about contemporary society's attitude toward language, the FCC sided with the complaint. Pacifica appealed the fine all the way to the Supreme Court. In the resulting case, the Court upheld the FCC's power to regulate and fine, but narrowly tailored its holding to the circumstances of the case. See Pacifica, 438 U.S. at 727-28.

Significantly, the Court noted in Pacifica that "Of all forms of communication, broadcasting has the most limited First Amendment protection" because "broadcasting is the uniquely pervasive presence that medium of expression occupies in the lives of our people." Id. at 748. Broadcasts, in the words of the majority, "extend into the privacy of the home and it is impossible completely to avoid those that are patently offensive. Broadcasting, moreover, is uniquely accessible to children." Id. at 728. These two unique characteristics of broadcast--its "pervasive presence" in the airwaves and its "unique accessibility" to children--were balanced against the idea that indecent speech falls "at the periphery of First Amendment concerns." Id. at 729.

In the decades that followed Pacifica, the FCC did not police broadcasters who aired so-called "fleeting expletives." This changed after the 2003 Golden Globe Awards when the musician Bono said that it was "really, really fucking brilliant" to get an award. Fox appealed the FCC's ruling, and in 2009, the matter came before the Supreme Court. The Court determined that the FCC had the authority to broaden its policy from banning repeated uses of profane language to banning any such usage; however, the Court did not decide whether the "fleeting indecency" ban was constitutional. On remand, the Second Circuit ruled for Fox on the grounds that the FCC's policy on fleeting indecency violated the First Amendment by being unconstitutionally vague, noting that "the FCC effectively chills speech, because broadcasters have no way of knowing what the FCC will find offensive." Fox Television Stations, Inc. v. FCC, 613 F.3d 317, 320 (2d Cir. 2010), cert. granted, 131 S. Ct. 3065, 180 L. Ed. 2d 885 (2011). Just six months later, in January 2011, the Second Circuit also sided with ABC against the FCC's $1.2 million fine for showing a buttock on "NYPD Blue." See Court Ruling on NYPD Blue Nude Shot 'Will Lead To More Graphic Scenes on TV',THE DAILY MAIL (UK), Jan. 7, 2011, http://www.dailymail.co.uk/news/article-1345159/Court-ruling-NYPD-Blue-nude-shot-lead-graphic-scenes-TV.html. The FCC petitioned the Supreme Court to clarify and hear both cases together. A decision is expected in June 2012.

Analyzing the Briefs

Supreme Court analysts in the mainstream press often focus too heavily on oral arguments, ignoring the tone of the legal writing. One can learn a lot about a case through the vivacity of the briefs. While the FCC's tone is measured, defensive and filled with legislative background, the respondents are forceful, direct, and at times plainly indignant. This section will briefly describe some of the chief points of each brief. The brief of the respondent television networks is available here and the brief of the petitioner FCC is available here.

Respondents' primary argument is that the FCC's indecency regime is the "antithesis of what the First Amendment permits," and asks the justices to declare it unconstitutional, thus overturning Pacifica. In the alternative, "if the Court is not prepared to revisit Pacifica for reasons of stare decisis," the respondents request that the Court at least enforce the narrowness of Pacifica's holding--which did not explicitly give authority to regulate fleeting expletives or fleeting nudity.

To begin with, the respondents argue that broadcasting no longer makes sense as the subject of unique regulation: "For more than 30 years, broadcasting alone among all mass media has been a second-class citizen. Only broadcasting is subject to content-based censorship by the federal government, simply because this Court in [Pacifica] believed that broadcasting was at the time unique, and thus uniquely without full First Amendment protection." Federal Communications Commission v. Fox Television Stations, Inc., 2011 WL 5373702 (U.S.), *1 (2011). Over the past 30 years, they argue, the media landscape has undermined the rationale of Pacifica, binding lower courts to an antiquated regime of "increasingly aggressive suppression of broadcast speech." They ask the Court to "announce firmly and finally that the time for treating broadcast speech differently than all other communications is over."

Citing United States v. Playboy Entm't Grp., 529 U.S. 803, 814 (2000), the brief restates the general rule that "Content-based restrictions on speech are presumptively unconstitutional, including restrictions on indecent material that comes into the home." Pacifica permitted the FCC to censor broadcast speech falling within the constitutionally nebulous category of "indecency" based entirely on what the Court perceived at the time to be "unique" characteristics of the broadcast medium. But, they argue, "Pacifica's foundations were built on sand" and should be overturned because broadcast is no longer uniquely pervasive or uniquely accessible to children.

Acknowledging that the Court may not be willing to overturn Pacifica, the respondents argue that the current regime is unconstitutional even under the existing law. Spending a good portion of their brief pointing out examples of the indecency policy being applied somewhat haphazardly, they argued that the regime as it stands today is overly vague, describing it as "a tableau of arbitrary and almost random outcomes." For example, the FCC found that the isolated use of the word "bullshit" in episodes of ABC's "NYPD Blue" was indecent, but the use of the words "dick" and "dickhead" in the same series were not. It also found that uses of the words "fuck" and "shit" by the subjects of the Martin Scorsese documentary "The Blues: Godfathers and Sons" were indecent, despite allowing the same words in Steven Spielberg's "Saving Private Ryan." In another instance, the FCC found the use of "bullshitter" on the "Early Show" indecent, because it occurred during an interview. All of this, to the respondents, demonstrates that the FCC's regime allows for "arbitrary and discriminatory enforcement, and fails to provide fair notice of what is prohibited." The "community standard" that the FCC seeks to enforce, respondents argue, allows the FCC to "pursue its own predilections because it rests entirely on the FCC's internal and oscillating experience." Implicitly, they suggest that the Commission is preoccupied with whatever complaints it happens to receive from the public about a given broadcast.

Moreover, respondents argue that the government's interest in curtailing speech is not substantial. They note that the governmental interest in protecting children from "indecency" exists only where the material at issue is egregiously offensive and can plausibly threaten the "physical and psychological well-being of minors." Sable Commc'ns of Cal., Inc. v. FCC, 492 U.S. 115, 126 (1989). Fleeting indecency, as broadly policed by the FCC today, seems unlikely to meet that standard. Even if the FCC's interest were substantial, "its current enforcement policy does not meaningfully advance that interest, and it is certainly not narrowly tailored to do so."

The petitioners, represented by Solicitor General Donald Verrili Jr., spend much of their brief portraying the current regime as a logical outgrowth of the federal government's ability to license radio broadcasters in the 1920s. Indeed, since before the first broadcast stations appeared in 1921, "federal law has provided that the radio spectrum may be used only with a federal license and only in compliance with federal regulatory requirements." Broadcast licenses are issued "only to serve the public interest, convenience, and necessity." Under this regime, a "licensed broadcaster is granted the free and exclusive use of a limited and valuable part of the public domain; when he accepts that franchise it is burdened by enforceable public obligations." (quoting CBS, Inc. v. FCC, 453 U.S. 367, 395 (1981)).

For much of their brief, the FCC argues that they have followed the context-based approach to indecency regulation permitted in Pacifica. The Court in Pacifica emphasized that the constitutionality of the FCC's regulatory authority over indecent broadcasting was based on the use of "a nuisance rationale under which context is all-important." That "concept requires consideration of a host of variables," including the "time of day" and the "content of the program in which the language is used," which "will also affect the composition of the audience." The Pacifica Court explained that, under the FCC's contextual approach, George Carlin's words might be totally if they appeared in "a telecast of an Elizabethan comedy." Essentially, the petitioners are trying to argue that what the respondents see as arbitrary enforcement of standards is actually carefully considered; the FCC's enforcement is intentionally not standardized, so that they are able to consider the individual context of each broadcast. This allows the FCC to examine the context of alleged indecency both within the broadcast itself and within the mores of society at large.

Moreover, petitioners dispute the vagueness challenge on the grounds that the specific instances in dispute here (cursing and nudity) would have been very clearly off-limits to Fox and ABC. "Fox could not reasonably have believed that the concededly gratuitous broadcast of the F-Word and the S-Word, during prime-time awards shows with millions of children in the audience, would not be considered indecent," the brief argues. If the company was "nonetheless uncertain about whether particular material is indecent [they] are free to air it during the regulatory safe harbor after 10 p.m."

The FCC also dismisses the respondent's claims that broadcasting is no longer uniquely pervasive or uniquely accessible to children. "Those characteristics of broadcasting remain true today," petitioners assert. The regime of broadcast-indecency regulation upheld in Pacifica has "become part of our national culture." (Quoting Dickerson v. United States, 530 U.S. 428, 443 (2000)). And the rise of alternative, unregulated media platforms, the FCC concludes, "has not rendered that regulation obsolete, since many households remain broadcast-only and since broadcast indecency regulation gives conscientious parents a relatively safe haven for their children."

In short, the briefs seem to describe two totally different worlds--one world in which the FCC ensures the value and decency of a central avenue of family entertainment, and another world in which the FCC unevenly censors certain media providers and not others.

Oral Arguments

Held on January 10, 2012, the oral arguments left legal analysts guessing about how the Supreme Court would rule. The full transcript is available here.

The oral arguments may have revealed where at least two justices fall on the question of the constitutionality of content-based regulations (i.e., overturning Pacifica). Justices Samuel Alito and Antonin Scalia both indicated support for the regime's constitutionality. Alito expressed concern that repealing the indecency ban would result in an explosion of televised nudity and profanity. "If we rule in your favor on First Amendment grounds," Alito said to the respondents' counsel, "what will people who watch Fox be seeing between 6:00 a.m. and 10:00 p.m.? Are they going to be seeing a lot of people parading around in the nude and a stream of expletives?"

Justice Scalia expressed similar worries about overturning the FCC's ability to regulate. Scalia, who authored the Court's prior ruling in the Fox case two years ago, approved of "a certain modesty" in language. He compared the FCC's regulatory ability to the Supreme Court's ability to ensure a certain level of dress for attorneys who come before Federal courts. He then went even further, suggesting that he was "not sure it has to relate to juveniles"--a position that would actually strengthen the FCC's power under Pacifica.

Leaning against the regime's constitutionality were Justices Elena Kagan and Ruth Bader Ginsburg. Though more reserved than Alito and Scalia, each pointed to examples where the FCC took no action in the face of on-air nudity and profanity, as when ABC aired Steven Spielberg's "Saving Private Ryan." Kagan reacted especially strongly against the non-uniformity of enforcement: "The way that this policy seems to work, it's like nobody can use dirty words or nudity except Steven Spielberg," she said. Her questioning implied that she was taking the respondents' arguments about the vagueness of the current "obscenity regime" to heart.

After oral arguments, the outcome remains uncertain. Several justices seemed unmoved that Pacifica needs to be overturned, wondering whether broadcast should be allowed to "die a natural death," in Alito's words. Others hinted that such a death has already come. This led Lyle Denniston of ScotusBlog to comment that "Justice Clarence Thomas's customary silence may have been the most eloquent expression."


These various legal questions are crucially important, but perhaps the deeper question is one of policy: Is broadcast television is still relevant as a unique category in our regulatory framework?

In Pacifica, the Court justified regulating indecency on broadcast because, broadcast was a unique medium. Justice Stevens' majority opinion focused on its "pervasive presence" and its "unique accessibility" to children. Yet this logic no longer seems to reflect reality. Today, Americans watch television programs and movies on DVDs, on networks' websites, through Netflix and Hulu, through iTunes, and even on mobile phones. Nine out of every ten households access television through cable or satellite, and no longer "over the air." See Michael Grebb, Uncle Sam Wants Your Airwaves, WIRED, Sept. 22, 2004, http://www.wired.com/politics/law/news/2004/09/65041?currentPage=all. Notably, though, cable and satellite television are subject to no indecency regulations. Broadcast stations are just part of the televised content available. The average viewer has virtually no perception of any categorical distinction between "over the air" channels and any other content provider.

Moreover, the market has adapted significantly to suit the needs of parents. For example, many cable and satellite companies allow subscribers to filter out channels showing indecent content. All televisions sold in the United States since January 1, 2000 are equipped with the V-chip. See Robert Corn-Revere, Can Broadcast Indecency Regulations Be Extended to Cable Television and Satellite Radio?, 30 S. ILL. U. L.J. 243, 262-63 (2006) (discussing the role of the V-chip and ratings system in undermining the FCC indecency regime). Content availability has also evolved. Since the time that Pacifica was decided, Cartoon Network, Nickelodeon, ABC Family, and a host of other child-friendly channels have met market demand for clean or educational programming.

The market has also adapted by having large standards and practices departments at most networks. Such departments exist at cable, satellite and broadcast networks, and are responsible for the moral, ethical, and legal implications of programming. Standards and practices departments are the reason viewers do not generally hear expletives or see pervasive nudity on most cable or satellite channels. Even in the absence of FCC enforcement, these companies realize that family viewers will be less likely to watch if they air unsavory material.

In short, the media landscape is very different than it was in the 1950s, '60s and '70s. It is increasingly difficult to view traditional broadcast companies like ABC, CBS, NBC and Fox as legally unique. This leads to the question: Should the manner in which we receive content--wireless signals, broadband, cable--make that content subject to different levels of censorship, when the end-users do not see the difference?

These concerns give rise to strange results. Does it make sense that "Grey's Anatomy" is allowed to show a topless patient if one downloads an episode from iTunes, but not if one watches the same episode live on ABC? Should David Gregory, host of Meet the Press on NBC, be sanctioned if he accidentally curses on his own political news show, but still be permitted to do so when appearing as a guest on a different political news show on MSNBC, even though the purpose of both shows, the likely audience, and the parent company of the networks are identical?

Attorneys can argue back and forth about whether the regime constitutional. Questions over indecency fascinate lawyers and law professors. See, e.g., Christopher M. Fairman, Fuck, 28 CARDOZO L. REV. 1711 (2007). But what seems clear is that the regime as it exists now does not really achieve much of anything. Broadcast channels already push the limits of decency by routinely discussing sex, portraying violence, and hinting at nudity between 6 a.m. and 10 p.m., even if they sidestep the use of specific words or visuals.

If a parent is really worried about what his young child watches, he cannot plop them down in front of CBS primetime and expect the child to be free from objectionable content. To the contrary, the child would quickly meet characters like Barney Stinson of "How I Met Your Mother" as he discusses his life's mission of "nailing drunk chicks." The show, in part, follows Barney's quests to have sex with literally dozens of women in all sorts of coercive ways. Yet this is totally acceptable under current indecency guidelines. One cannot help but wonder exactly how such a plot theme is less objectionable to impressionable children than hearing a common four-letter word.

This is not to imply that "How I Met Your Mother" or any of dozens of similar shows should face more regulations or fines. The point is that the status quo no longer makes sense for anyone--not parents, not children, and not content providers. Either the censorship rules need to be more consistent or the rules need to be jettisoned altogether. In deciding FCC v. Fox, we can only hope that the Supreme Court will add some much-needed clarity and modernization to this area of the law.

Brian Farkas
is a second-year student at the Benjamin N. Cardozo School of Law in New York City, focusing in Intellectual Property and Information Law. He is also pursuing a Certificate in Dispute Resolution. A graduate of Vassar College, Brian writes regularly for The Law Student Connection on issues of Intellectual Property, Art Law and Media Law.

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