In ruling that the Federal Communications Commission was justified in changing its policy toward what are delicately referred to as “fleeting expletives” — words considered indecent or profane uttered once or twice during live broadcasts rather than as part of a prewritten script — the U.S. Supreme Court sidestepped the First Amendment issue that could, if properly adjudicated, eliminate the FCC’s power to ban those words at all.
The high court also chose to ignore, as most commentators have, an even larger question — whether in a country with a First Amendment that protects freedom of speech and of the press, there should be a Federal Communications Commission at all.
The FCC was established in 1934 to regulate radio (television was added later). But a government operating on the presumption of liberty embodied in the First Amendment should clearly understand that the electronic broadcast media, which did not exist when the Constitution was ratified, are simply “the press” with new technology. As such, they should not be subject to federal regulation at all.
This would not necessarily mean a constant barrage of dirty words everywhere — though in some venues including a lot of everyday conversation that barrage is already in evidence compared to a few decades ago. This newspaper is not prohibited by law from using dirty words, but it chooses not to do so for reasons of common decency and an assessment of its market. We suspect most broadcasters would be similarly guided.
The two cases recently decided had to do with the famous “wardrobe malfunction” that bared Janet Jackson’s breast for 9/16 of a second during Super Bowl 2004 and the utterance of the f-word and s-word during a couple of Golden Globe awards ceremonies. The FCC had previously not punished “fleeting” use of expletives, but it changed its policy after the Golden Globe incidents and fined CBS $550,000 for the bare breast incident.
The Supreme Court declined to discuss the First Amendment implications of these policies, ruling only that the FCC had provided a sufficient explanation for its change in policy. A lower court may now consider First Amendment implications and the case could be before the U.S. Supreme Court again in a year or so. Justice Clarence Thomas, who voted with the 5-4 majority on the narrow administrative issue, wrote a separate opinion saying previous cases allowing the FCC to censor certain words might be ripe for reconsideration.
It also might develop that technology will make these issues moot. Federal regulation of broadcasting rests on the legal construct that “the people,” meaning the government, owns the airwaves provided by nature and justified, at least initially, on the limited broadcast spectrum.
Law professor Stuart Benjamin of Duke University did a blog post noting that in light of the stricter FCC policies some local TV stations are increasingly cautious about covering events like celebrations of sports team victories live. He suggests that since only about 14 percent of households now rely on over-the-air broadcasts (the rest use satellite or cable, which the courts have ruled the government cannot censor), the government might “reclaim and auction the spectrum use by broadcasters … and use a small fraction of the money to subsidize cable or satellite for those who cannot afford it.”
That would leave the FCC regulating only radio, which could lead to a challenge to the FCC’s authority. Or Congress might correct its New Deal-era mistake and give radio full First Amendment protection.
By sidestepping the most salient issue in these cases, the Supreme Court has left such confusion in its wake that such remedies, which might have been considered too controversial not long ago, now lie within the realm of possibility.