[This post by FMC Policy Fellow Daniel Lieberman and COO Chhaya Kapadia]
A major Supreme Court case was concluded today — and no, we’re not talking about the health care bill challenge. The Nine (actually eight in this case, with Justice Sotomayor recused) dropped its decision in FCC v. Fox, and, while it wasn’t quite the doozy it could’ve been, it does have real implications for artistic expression in American broadcast media.
Today’s ruling overturned FCC sanctions against broadcasters in several high profile cases, which notably involved F-bombs from Cher and Nicole Richie at the Billboard Music Awards and seven seconds of nudity in a 2003 episode of “NYPD Blue.”
Future of Music Coalition, along with the Center for Creative Voices in Media, filed a brief in this and earlier cases arguing that the FCC’s indecency policy was vague and arbitrary, and could result in a chilling of creative expression.
The Court’s opinion, authored by Justice Anthony Kennedy [PDF], didn’t wrestle with the larger First Amendment question that could’ve redefined indecency in media. Instead, they chose a narrower ruling that maintains the FCC’s authority to regulate indecency in general, while subtly encouraging the Commission to modify its rules and how it applies them.
While we think the Court could have gone farther to prevent the potential chilling effect of indecency regulations, we heartily agree with the Supremes that the FCC needs to: 1) clearly define what it sanctions, and, 2) consistently apply those rules.
The disappointment comes from the fact that there are still grey areas regarding what the government brands “indecent” on American broadcast television and radio. For the sake of creators everywhere, we hope the FCC will establish clear parameters that wear well over the long term rather than vacillate from administration to administration.
It’s has been a long and winding road to today’s narrow, unanimous ruling and it’s not over yet, as there are multiple cases still winding their way through the judicial system. (Remember Janet Jackson and nipplegate?) Actually, the path goes all the way back to a classic piece of comedic button pushing by the late, great George Carlin. Like many before us, we believe strongly that our nation’s artists need clear guidance to prevent the chilling of creative expression. Hopefully, the FCC gets the message the Supremes put across in today’s ruling.