Indecency: Setting A "Fleeting" Precedence

The interest in the FCC's indecency enforcement and the Supreme Court's taking of the "Golden Globes" case remains a topic of heavy of speculation. The big question is: Why did the Court take the case?

It didn't have to; it could have let it return to the Commission for reconsideration, subject to the Second Circuit's critical discussion. What could it have in mind?

It didn't have to; it could have let it return to the Commission for reconsideration, subject to the Second Circuit's critical discussion. What could it have in mind?

Last week we looked at the "high road" -- the possibility that the Court intends to reevaluate the fundamental rationale underlying the regulation of broadcasting differently than other media, scarcity and pervasiveness.

In 1974, in Miami Herald Publishing Co. V. Tornillo, the Court considered a Florida statute that applied a combined version of the fairness and equal opportunities doctrines to Florida newspapers that created a right to reply to press criticism of a political candidate. Proponents of the statute argued that newspaper publishing had become so consolidated and concentrated, and new entry barriers to print publishing so high, that, in effect, the scarcity rationale now applied to newspapers. The Court disagreed and invalidated the statute.

Many argue, as did the networks in this case, that broadcasting is now more like newspapers, and new forms of mass media allow entry to anyone with an opinion. So, Tornillo ought to apply to broadcasting. Yet, even after further changes in the newspaper business raising even higher entry barriers to print publishing, and with the advent of mass computing and the Internet, the Court has reaffirmed treating broadcasting differently than other media based on scarcity.

For example, in 1994, in upholding the FCC must-carry regulation on cable television, the Supremes again repeated a belief that its distinct approach to broadcast regulation rests upon the unique physical limitations of the broadcast medium: "If two broadcasters were to attempt to transmit over the same frequency in the same locale, they would interfere with one another's signals, so that neither could be heard at all" (Turner Broadcasting System, Inc. V. FCC). Later in the opinion, the Court states: "It would be error to conclude, however, that the First Amendment mandates strict scrutiny for any speech regulation that applies to one medium (or a subset thereof), but not others." The Court then distinguished cable from other media due to the special bottleneck characteristics of the cable medium.

Even in the face of the incredible onslaught of "new media," the Court could persist in its belief of a special nature to broadcasting. It could continue to justify indecency regulation that applies only to broadcasters, even under the strict scrutiny standard of the First Amendment. Remember that in Pacifica the Court did not "speak to cases involving the isolated use of a potentially offensive word." It now has the case before it where it can speak exactly to that situation. And, remember the famous words of Justice Jackson about why the Court is infallible.

Many point out that the Supreme Court has increasingly become a political body as well as a judicial one. Conceivably, its decision could be determined more on the sense of a majority of justices whether fleeting expletives should be struck from advertiser-supported "uninvited" broadcast media, instead of whether the First Amendment proscribes regulating broadcasters in a way different than other mass media. Despite the well-reasoned consideration of the Second Circuit, the clear inroads of "new media" into the popular culture and dialogue, and what appears to some of us as an obvious First Amendment infringement, the Court could hold on to its scarcity beliefs and accept the Commission's expansion of Pacifica to the "first blow" of indecent, fleeting and spontaneous, speech.

So, which way are you betting the Court will go?

This column is provided for general information purposes only and should not be relied upon as legal advice pertaining to any specific factual situation. Legal decisions should be made only after proper consultation with a legal professional of your choosing.