Editor's Note :

Editor's Note :

On Monday at 9:30 a.m. we expect orders from the April 18 Conference. On both Tuesday and Wednesday we expect one or more decisions in argued cases; we will be live blogging both days beginning at 9:45 a.m.

Kali Borkoski Manager

Posted Mon, January 9th, 2012 8:17 am

FCC v. Fox

On Tuesday the Court heard oral arguments in Federal Communications Commission v. Fox Television Stations. The question before the Court is whether the wording of the FCC’s policy banning “fleeting” indecency – including the “s-word”, the “f-word”, and images of nudity – is unconstitutionally vague. (Lyle recapped the argument here.) The case involves two separate proceedings, one of which has previously been before the Court. Three years ago, in Federal Communications Commission v. Fox Television Stations, 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.  Instead, the case returned to the Second Circuit, which held that the policy as a whole was unconstitutional. Applying that ruling in a separate case, the Second Circuit then struck down the use of indecency regulation against images of nudity on TV.

This week we discuss the regulation of broadcast and other media.  Our focus is the indecency policy before the Court in this case, which includes broadcast material that “describe[s] or depict[s] sexual or excretory organs or activities” and is also “patently offensive.” Whether something is “patently offensive” depends on the “full context” of the broadcast, and three principal factors are used to make that determination: (1) the explicitness or graphic nature of the description or depiction of sexual or excretory organs or activities; (2) whether the material dwells on or repeats at length descriptions of sexual or excretory organs or activities; [and] (3) whether the material appears to pander or is used to titillate, [and] whether the material appears to have been presented for its shock value.


  • Kali Borkoski – 0 Promoted Comments

    Day 1:
    Should the FCC have the power to regulate broadcast media, or have changes in the media landscape (such as the Internet) made the distinction between broadcast and other media irrelevant? Relatedly, should the Court overrule FCC v. Pacifica?

    • Matthew Holohan – 2 Promoted Comments

      The Supreme Court has allowed stricter content restrictions on broadcast media, despite the fact that at least some of the regulated speech is otherwise protected by the First Amendment. The rationale for this principle, as articulated in the Pacifica decision, has rested on the idea that “broadcast media have established a uniquely pervasive presence in the lives of all Americans,” as well as the fact that “broadcasting is uniquely accessible to children.”

      This rationale was significantly eroded by the rise of cable and satellite television and radio services, which fell largely beyond the scope of government indecency regulations because they did not rely on publicly-licensed broadcast frequencies. Now, with the ubquity of even more forms of electronic media – namely Internet, cellular network, and other data-networked delivery systems – the rationale underlying limited protection for broadcasters can no longer be supported. The broadcast media are no more pervasive or accessible to children than other forms of electronic media. Broadcast regulation places undue burdens on a limited class of content providers with little effect on the accessibility of objectionable content. Pacifica should be overruled and the FCC should be stripped of its authority to regulate broadcast content.

      • Thomas North – 0 Promoted Comments

        The post I’m replying to is incorrect as a matter of Supreme Court law. Even setting aside the huge matter of stare decisis, the Supreme Court in Pacifica defined pervasiveness as a function of the nature of broadcasting, going uninvited into everyones’ homes and all public places on the airwaves owned by the public, contrary to private media (cable etc. ) that can ONLY be accessed by a consenting adult subscriber. The Supreme Court has defined pervasiveness as having absolutely nothing to do with the nature of any other competing media, then in 1978, or now. Also, broadcast indecency enforcement continues to be the core central function for which the FCC exists, more important than any of the other things it does. Citizens have a right to NOT have indecent media available or even accessible in their private homes, no matter what other consenting adults do. Your approach would “dumb down” everyone to a Playboy Channel mentality, forcefully so, violating ALL individual freedom of choice in our nation on the most critical personal matters.

        • Thomas North – 0 Promoted Comments

          By the “post I’m replying to”, I was referring to Matthew’s, not Kali’s, for clarification

        • Kim Anderson – 0 Promoted Comments

          That distinction is not particularly convincing in the modern day, if it ever was.

          On that definition, the internet is pretty much equally pervasive. Free wifi is ubiquitous. Sure you need a device to access it, but the same is true of broadcast TV; you need a TV set.

          And saying that people have a right not to have certain media even accessible in their homes is a bit perverse. They certainly have the right to block it out or to prevent it from being viewed in their own homes if they can. They have the right to remove all TV sets from their home. They have the right to electromagnetically shield their home, if they can actually be bothered. But the right you formulate isn’t really a freedom, it’s effectively an encumbrance on others given the nature of EM waves. It minisculely adds a range of opportunity to the homeowner in question (who could prevent actual viewing of the content in any number of other ways), while substantially restricting the range of opportunity of everyone else.

          Individual freedom of choice is manifestly augmented by allowing free broadcasting and statements to the contrary are ridiculous. It’s like saying that banning hotdog stands would increase individual freedom since you have a right/freedom not to have hotdogs “accessible” to you to tempt you into unhealthy eating.

          I actually think it’s fine for the legislature to make the ultimate call on this issue, even though I disagree with the current policy. But trying to deny that it’s a restriction on freedom is nonsense. You have to squarely confront that it is a restriction on freedom, and just say that it’s a restriction the legislature is permitted to impose.

    • Marjorie Heins – 1 Promoted Comment

      FCC v. Pacifica (1978) allowed FCC censorship of “indecency” on the airwaves based on the belief that broadcasting was uniquely pervasive and uniquely accessible to children. Obviously, with cable and the Internet, neither assumption holds true today, and there is little constitutional justification for treating broadcast differently from other media – if there ever was. This doesn’t mean, however, that structural regulation of broadcast (or other media) is not justified, in the interests of economic equality and diversity. It is content-based censorship that offends the First Amendment, especially when the FCC’s standards for censorship – its definition of “indecency” and its arbitrary and inconsistent rulings – are as vague and subjective as the Second Circuit found them to be.

      • Thomas North – 0 Promoted Comments

        The statement that “neither assumption holds true today” (referring to unique pervasiveness and accessbility to children) is contrary to Pacifica itself, and inaccurate. As pointed out in numerous briefs served upon Ms. Heins, the Supreme Court defined “pervasiveness” as a function of the nature of the individual medium being tested, without any regard or relevance of OTHER (private and therefore, non-public) media that may be available to paying adult subscribers. Further, the Supreme Court has held that indecency regulation is NOT censorship, since there is no “prior restraint.” Accordingly, the above post is at direct odds with all law on the issue.

    • Rusty Shackleferd – 0 Promoted Comments

      My initial feeling is that since the government does licenses out the broadcast frequency it can say what will be said on them. The question for me is whether limiting what you can but on the licenses violates freedom of expression. And it probably does not. The court has upheld in other cases that the government has this power so it probably fine. Maybe it is unconstitutionally vague. But I am okay with it for now.

  • Kali Borkoski – 0 Promoted Comments

    Day 2:
    Can regulation of indecency be justified by the need to protect children? If so, how might the logic of this decision differ from that of the majority ruling last Term in Brown v. EMA?

    • Thomas North – 0 Promoted Comments

      Kali, the briefs have identified a couple of infinitely large distinctions that come to mind, without going back and reading them now before speaking. First, Brown involved video games that are privately purchased by adults, as opposed to broadcasts on the general public airwaves, which by law, are a public place exactly the same as a public street, sidewalk or park, etc., and also broadcast as “an intruder” into all homes, unsolicited. So there is consent for one but not the other. Second, the Court in Brown placed great emphasis on the fact that the CA law was a new law, and not one with a historical tradition of constitutionality, like broadcast indecency regs. Essentially, the Court said in Brown that while broadcast indecency regs have been found constitutional, it is not going to start carving out new exceptions to the 1st Amendment.

    • Bradley Smith – 3 Promoted Comments

      The problem with a policy such as the one currently in place is that, while it may aim to protect children, it rarely achieves that in practice. To take a realistic approach to this, “fleeting” indecency occurs almost constantly around children – at school, at the bus stop, at the supermarket. It seems to me a safe bet that the typical conversation on a middle school or high school bus would send the FCC into a conniption fit were it to be aired on TV.

      Another example is the internet. The plethora of obscene material that can be found with a few words and a search engine is borderline terrifying, and the things that are heard in online games is even worse. None of these things are censored, and children of all ages are playing games like Call of Duty, or updating their facebook pages and surfing the internet after school.

      The “fleeting” indecency policy seems like it has some use, but it could use some refining. Censoring the “s-word” and the “f-word” seems borderline pointless, for all of the reasons I’ve addressed above.

      Sexual and violent images are a different story. I understand and sympathize with people who want to be able to turn on the TV and not worry about being bombarded with pornographic images. However, I do not think that protecting children needs to be the justification for this, when plenty of other, stronger arguments pertaining to obscene material exist.

      There seem to be two major differences between Brown and this case: In Brown, there is active participation in the violence/sex, and in watching TV the viewer is in a passive role; and the other being that in playing a video game one self-selects to participate, while in watching TV one is at the whim of the station owner(s).

      The first argument was thrown out by the Court in Brown, where the majority opinion stated that there is no proof that participation in simulated violence has any more of an effect on a person than watching violent movies. However, the second argument seems to have merit. Buying a video game or conducting a Google search is inherently different from channel surfing on the television. In the former category, one is very rarely caught by surprise by the content. If I go to a store and buy Halo, it is rather obvious that it will be violent. TV does not have this same degree of user selection, outside of a select few channels. With this in mind, some degree of censorship seems merited. However, as mentioned above, the current scope of that censorship merits reform.

    • Jade Bath – 0 Promoted Comments

      Some of the problems I have with these laws are ethically, I think that was a good law and the sale of those types of video games should be regulated. I don’t know how you could argue that that regulation is constitutional. A lot of the comments in the discussion brought up the differences between buying a video game and switching through channels. I do think this difference in activity allows for the airwaves to be regulated. Although as other have brought up, I can understand how obscenities come from many other sources like the internet and in daily life, I don’t think that makes it appropriate on television. Also maybe regulation of indecency on television could translate into other areas.

  • Ruthann Robson – 1 Promoted Comment

    The protection of children of course has a long history in indecency in general. One interchange in the oral argument that was interesting does relate to the “regulated media” aspect:
    JUSTICE GINSBURG: You are saying that the standard can still be symbolic, as Justice Scalia said. We want the King’s English — for the very children we’re talking about when they go on the street, when they — their big brother says something to them, it is — the words that were, the expletives, are in common parlance today. I mean, it is — I think that children — the children are not going to be shocked by
    them the way they might have been a generation ago.

    GENERAL VERRILLI: Justice Ginsburg,
    something this Court said in its prior decision is right on the mark with respect to this issue, which is it’s a question of whether it’s portrayed as appropriate. And when it is — it’s one thing when your 13-year-old brother is saying it to you or some bully in the schoolyard’s saying it to you.
    It’s another when it’s presented to you in this medium as an appropriate means of communication.

    Yet as to the “buttocks,” this distinction may founder given the friezes in the courtroom, as I discuss here: http://tinyurl.com/82gqe5t

  • Kali Borkoski – 0 Promoted Comments

    Day 3:
    The enforcement of obscenity regulations arguably is paradoxical given that policies must be sufficiently comprehensive to explicate what is prohibited, but not over-inclusive in the abstract so as to chill speech. With this in mind, is the FCC’s generic policy against “indecency” too vague?

  • Christine Corcos – 1 Promoted Comment

    From the FCC website: “The FCC has defined broadcast 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 organs or activities.” Indecent programming contains patently offensive sexual or excretory material that does not rise to the level of obscenity.” While this language might seem to be precise, in that it tracks the Miller test to some extent, indecency “doesn’t rise to the level of obscenity.” So, what is it? Since 2004, the FCC has classified words that are not even “in context” but taken literally describe “sexual or excretory material” as indecent (fleeting expletives) as indecent, thus making this definition both vague and unpredictable.
    The FCC agrees that the First Amendment protects such language and material and thus they can be broadcast at a time when children are unlikely to be watching. But of course children might be watching. In this time of DVRs and YouTube, children might easily see such material anyway. Should the FCC be substituting its judgment for parental guidance?
    In the case of profanity, the words need only be “so grossly offensive to members of the public who actually hear it as to amount to a nuisance.” How many members? Which members? What is grossly offensive? What is grossly offensive has changed over time for a number of us. Younger viewers may be more tolerant of language than older ones although this is not necessary true, people in certain sections of the country may be more tolerant of certain images than viewers in other sections of the country. Again, viewers can, given the technology we have today, make these decisions for themselves, particularly since many viewers receive broadcast tv via cable or satellite transmissions, and can make their opinions known using their remotes, calls to their cable or satellite providers, or to the sponsors of the shows. Many do so.

    FCC Website: http://www.fcc.gov/guides/obscenity-indecency-and-profanity

  • Kali Borkoski – 0 Promoted Comments

    Day 4:
    Disregarding the great quantity of media attention this case has received, is the regulation of “fleeing indecency” an important First Amendment issue?

    • Matthew Holohan – 2 Promoted Comments

      Government restriction of free speech is always an important First Amendment issue, regardless of the form it takes. Whether it’s fleeting indecency or a high school student holding a “Bong Hits 4 Jesus” sign, the public should be concerned when the force of government is used to stifle speech in any way.

    • Thalia Kelly – 0 Promoted Comments

      It’s difficult to determine where the First Amendment falls in this case, mainly because one cannot tell what’s indecent and what isn’t– violence is apparently decent broadcasting material. Regulating indecency on television falls into a pool of ambiguity and fragile circumstances. The FCC does not regulate network television for indecency from 10pm to 6am and also does not regulate cable televisions stations. What makes incidences like Cher and Nicole Richie’s obscenities anymore shocking if they occurred in the afternoon rather than at 10pm? It’s difficult, perhaps unsolvable, circumstances, raised by cases like this, that deter internet regulation.
      Government restriction of the First Amendment is always an important issue. In this scenario I believe the context is too vague for increased regulations.

  • Bradley Smith – 3 Promoted Comments

    This issue is exceptionally important, and one that deserves consideration given the huge changes that have occurred in mass media since George Carlin and FCC v. Pacifica.

    While the case does not involve the hot button political discourse that was the topic of Snyder v. Phelps, it is important to address any policy that stifles speech, especially in the broad manner of the FCC’s “fleeting indecency” policy.

    Given the prevalence of the internet in society today, it seems odd to restrict speech on the television given its “pervasive nature” while the internet is unrestricted. The case here gives the Court the chance to address this discrepancy, and for that reason it is certainly an important First Amendment issue.

  • Kali Borkoski – 0 Promoted Comments

    Day 5:
    How should the Court decide this case?

    • Patrick Walsh – 0 Promoted Comments

      It may be easier to guess how the Court “will” rather than how it “should.”

      Given the likely fate of broadcast media it is tempting to let it “die a natural death” and turn our attention to the flood of obscene material online.

      Absent in the debate, as far as I can see, is the fact that people can no longer plug a television into the wall and turn it on. There is an intentionality now in choosing the watch television “over the air” that did not exist in the past. Given the ubiquity of internet hotspots, is the difference shrinking?

      I think Justice Scalia is correct in his insistence for some governmental policing of the boundaries. In a sea of pornography, and in light of the many other avenues of electronic speech–for TV itself can hardly be termed democratic in nature!–perhaps it is most worthwhile for the Justices to carve out a symbolic, federally monitored space for corporate speech that excludes the prurient.

      There is little utility for this case otherwise.

      The scope of the decision should be narrow–broadcast, commercial television, and it should include a reference to obscene violence as well. For as long as we are in the business of protecting children, if only symbolically and in our own eyes, we should include the pornographic representations of violence and brutality that have arisen in the absence of sexual “obscenity.”

      • Ramtin Rahmani – 0 Promoted Comments

        The Justices made their opinions obvious in the case “FCC v. Fox Television Stations et. al.” I understand that we know what the Judges will (most likely) decide. It interests me that this case is even reviewed for is constitutionality, because the idea of a “safe-haven” for children does not deal with the Constitution. The First Amendment clearly states a person’s freedom, so why should they not express it through various mediums. People are allowed to swear in person, so why is it stifled on television shows?

        On the other hand, watching TV requires for you to participate in various actions–buy a television, set up an antenna, and tune to a specific channel–so it is the decision of the FCC to regulate what can be done. Just as there are HIPAA laws regulating healthcare disclosure, laws regulating the broadcast-TV spectrum can exist. It is ABC/CBS/NBC/FOX’s choice to participate as a provider. In the end, however, the government owns these airwaves and has the right to regulate what can be said.

        It is nice to have a few channels free of nudity or obscene language, and because the government owns these airwaves, it is their right to regulate them. However, I do not believe it is fair for the government to pursue some cases of nudity while it leaves other shows or companies unscathed. The government needs to make their standards more evident, otherwise television companies and the government will become engaged in many lawsuits.

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