[This post was co-authored by FMC legal and policy interns Liz Allen and Adam Holofcener]
Music and “vulgarity” are sometimes cozy bedfellows, but how does the law actually treat indecency as it applies to broadcast radio and television?
Last week, the Supreme Court decided to hear the Second Circuit Court of Appeals’ decision in FCC v. Fox. The Court’s inquiry is limited to “Whether the [FCC’s] current indecency-enforcement regime violates the First … Amendment to the United States Constitution.” Almost a year ago, the Second Circuit decided that the FCC’s indecency policy is unconstitutional because its language is too vague. You may also recall that we filed an amicus (friend of the court) brief in that case with Center for Creative Voices in Media (Check it out here).
Currently, the policy prohibits all “obscene” material and restricts the broadcast of “indecent” material during the hours of 6 a.m. and 10 p.m. So, you can’t say “shit” on “The Today Show,” but “South Park” is fair game. When determining whether material is indecent, the FCC asks whether it “depict[s] sexual or excretory organs or activities” and also whether the broadcast is “patently offensive as measured by contemporary community standards.” After U2 singer-megastar Bono dropped an unintentional f-bomb during the 2003 Golden Globe awards, the FCC decided that such a slip could still trigger fines because it “inherently has a sexual connotation[.]”
The Supreme Court will review two incidents: an episode of “NYPD Blue” that included an eight-second-long clip of a female’s bare butt and a few four-letter-words uttered by Cher and Nicole Richie during the 2002 and 2003 Billboard Music Awards, respectively. Responding to some viewer complaints, the FCC reviewed the live award shows and the NYPD episode and ultimately determined that both violated its indecency policy. Fox, however, challenged the FCC’s indecency ruling. The case eventually made it to the Second Circuit Court of Appeals where the court held that the FCC’s indecently policy was so vague that it results in an unconstitutional restraint on speech. Now, the Supreme Court will review that decision, and finally resolve the question of whether the FCC’s indecency-enforcement regime violates the First Amendment.
You may ask why FMC cares about police dramas being able to show heinies. Well, this is an issue with very real consequences for the creative community at large. For example, Ken Burns’ seminal WWII documentary, “The War,” was edited by some PBS affiliates who feared airing the original version because of FCC fines. Let’s face it, the world isn’t all “gosh darnits” and “jee whizzes,” and we believe that artists have the right to create with free speech protections. Likewise, the public’s ability to experience art that may be more rough-around-the-edges can be culturally beneficial. With a vague and arbitrary indecency policy, what you get is a lot of self-censoring, or the a so-called “chilling effect” which is not at all good for creative expression.
It’s never perfectly clear what the Supremes will do, but you can be sure we’ll keep you up to date on the ins-and-outs of free speech jurisprudence.