Anything could be the result of the Supreme
Court's decision to take up this Second Circuit "fleeting expletives" case.
Yes, it could be the end of the FCC's indecency regulation of
broadcasters. The Second Circuit's decision makes excellent reading on the
Constitutional reasons why the Supreme Court might find against any continuing
FCC purview over indecency. In what the Circuit termed "dicta," which is
reasoning or statements not directly germane to reaching the actual decision but
rather are the more expansive thoughts of the judges, the Circuit all but said
that they did not see a way for the FCC to write a decision upholding sanctions
against fleeting expletives that would pass Constitutional muster.
But,
as everyone knows, as a result of Supreme Court decisions spanning from abortion
issues to Bush v. Gore, the Supreme Court is a political body and not a wholly
judicial body. The decision reached by the Supreme Court in this fleeting
expletives case is likely to be grounded more in whether a majority of justices
think that fleeting expletives are appropriate on broadcast TV and radio, and
less on whether our federal government under the First Amendment should be
regulating broadcasters in a way that no other medium of mass communications is
regulated. I believe if the Supreme Court was to decide this case on First
Amendment grounds, the further regulation of indecency by the FCC would fail for
the reasons given in the dicta to the Second Circuit decision.
Whether
the Supreme Court believes broadcasting should continue to be subject to
indecency restrictions in this multi-media world of ours, and whether the
Supreme Court attempts to now extend the power of the federal government to
regulate indecency in all media, substantially depends upon whether the justices
buy into the special interest groups' desire to have our federal government be a
national nanny, or whether the justices recognize that the caliber of human
discourse ebbs and flows and it is the audience themselves with the "on-off"
button who should control which broadcasts are welcome.
So, the
resulting decision of the Supreme Court could be anything from taking the FCC
out of the indecency regulation business on First Amendment grounds, to even
possibly giving the green light to an extension of the previous reasoning for
such regulations, based upon the ubiquity of broadcasting and the need to
protect children, to encompass most media and give our federal government vast
new powers to regulate what is the minimum level of coarseness for speech and
actions on cable, the Internet and satellite radio – that "level playing field"
that some broadcasters have for so long coveted.
So, in the next year or
so, we will see the Supreme Court taking up both sex and guns under the First
and Second Amendments respectively. Thank goodness the Court is not likely to
continue in sequential order as the Third Amendment – "No Soldier shall, in time
of peace be quartered in any house, without the consent of the owner, nor in
time of war, but in a manner to be prescribed by law" – appears to be pretty
non-controversial for now.
--John Garziglia is a communications
attorney at the Washington, DC firm of Womble Carlyle Sandridge & Rice,
PLLC. The views expressed are his own.
--All rights reserved. No part of this article may be copied
or changed without written consent of Inside Radio/M Street Corp. For
permissions, email: genemckay@insideradio.com
