Should Indecency Case Concern You?
By now you've read the news about the Supreme Court taking up the "fleeting expletive" case. While it was mostly TV defending the late night nakedness and self-absorbed Hollywood types dropping F-Bombs we wanted to make sure you know how all of this affected radio. For that we turned to broadcast attorney John Garziglia with the following question: As a result of the Supreme Court hearing should radio broadcasters be worried or concerned moving forward?
The Supreme Court this week heard oral argument on two television station indecency cases. These two indecency cases, one about Cher and Nicole Richie swearing, and the other about the ABC show NYPD Blue, have been the subject of several FCC and Court of Appeals decisions, including most recently the 2nd Circuit Court of Appeals decision that essentially found the entire FCC scheme of indecency regulation unconstitutional.
There will be several practical results of a definitive Supreme Court ruling on these cases. Some have predicted, after hearing the Supreme Court Justices’ questions and comments, that the forthcoming decision will affirm the FCC’s indecency enforcement scheme including the several hundred thousand dollar fines that hang over a radio broadcaster for subject matter or words deemed indecent by the FCC.
If the Supreme Court was to affirm the FCC, the FCC would presumably quickly act on the huge backlog of enforcement complaints it now has. Thank goodness for radio that most of the enforcement complaints are against television stations. Acting on these enforcements complaints would likely result in some fines being assessed. But equally important to the business plans of broadcast stations is that, once enforcement actions are taken, the FCC would lift the license renewal application holds now in place on many broadcast station license renewals.
If, however, the Supreme Court rules against the FCC by an affirmation of the 2nd Circuit decision, or by a 4-4 tie since Justice Sotomayor has recused herself from the case, or if the Supreme Court issues a wider decision that effectively rules unconstitutional the FCC’s indecency enforcement regimen, the potential of $300,000+ fines hanging over broadcasters would be history. Presumably the FCC would then quickly move to dismiss the hundreds of thousands of now pending indecency complaints and grant the many license renewal applications now be held.
There is a third possibility which is that the Supreme Court sends the case back to the 2nd Circuit for further proceedings. In that case, the FCC’s indecency enforcement remains as it has been for the past several years.
For operation managers and radio personalities, even if the FCC’s indecency enforcement is ultimately ruled unconstitutional by the Supreme Court, there may be little change to your programming parameters. It goes without saying that unless an operation manager or radio personality also happens to be the owner of the broadcast station, it is the owner of the radio station that, with the exception of certain political broadcasting, is absolutely in charge of programming content.
Therefore, a First Amendment-favorable Supreme Court decision is not a green light to use expletives or add racy content as the First Amendment right is the radio station licensee’s right, not the employee’s right. Many licensees will likely make prudent business decisions that there will be no change in policies even with the FCC’s indecency rules being ruled unconstitutional.
The Supreme Court Justices oral argument comments are somewhat remarkable in their apparent lack of concern for First Amendment values. For instance, Justice Scalia is reported as stating that “all we are asking for” is a few television stations out of 800 cable channels that have no cursing and nudity. Imagine substituting the word “newspapers” for “television stations”. Would our First Amendment allow for government censorship of some newspapers to ensure government-preferred content?
Chief Justice Roberts reportedly observed that 800 channels means there are alternatives for those wanting racier content than now allowed on over-the-air television. Again, substitute “magazines” for “channels” and “newspapers” for “over-the-air television” and the First Amendment infirmities of the observation become apparent.
Justice Scalia’s reported admonition to broadcast stations as one of the nation’s highest judicial officials that “maybe you should not interview” those who curse on TV says it all. In his view a broadcast station licensee, to stay on the good side of the heavy hand of government, should conform its programming and content to what government officials want, rather than enjoy First Amendment protections to make independent decisions on programming and content.
What is really being argued at the Supreme Court is that nebulous “public interest” standard emanating from the Communications Act of 1934. No one has ever really been ever able to define what is the “public interest” for broadcast stations. Because the government issues licenses for broadcast stations as a spectrum traffic cop instead of letting signal chaos occur, does that give the government leeway under the First Amendment to censor broadcast station content? Many decades of FCC and court decisions says that our government has that censorship right. We may now see the Supreme Court taking up the issue once again.
Whichever way the Supreme Court decides, a significant segment of Americans will be aghast. If the Supreme Court decides that full First Amendment rights apply to broadcast station licensees, those who believe that the recipients of government-granted licenses have an obligation to program content that meets a certain level of community standards, and religious adherents who extol family values, will go into a frenzy. If the Supreme Court decides that full First Amendment rights continue to not apply to broadcast stations, First Amendment zealots will slam the Court for what will be perceived as a wholly mercurial bending of the First Amendment to satisfy the Court’s social beliefs. Whatever decision is issued later this Spring or early Summer is likely to be interesting.
We should hear something about the case around June.
John F. Garziglia is a Communications Law Attorney with Womble Carlyle Sandridge & Rice in Washington, DC and can be reached at (202) 857-4455 or email@example.com. Have a question for our "Ask The Attorney" feature? Send to firstname.lastname@example.org.
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