Supreme Court to review harsh new FCC rules


We read:

"The justices agreed to give the Federal Communications Commission a chance to defend its decision to start punishing broadcasters for the isolated and fleeting on-air use of expletives, an abrupt change in the commission policy that a federal appeals court last year found procedurally improper.

It has been almost exactly 30 years since the Supreme Court ruled in the "seven dirty words" case that the First Amendment did not bar the government from regulating the broadcasting of speech that, while "indecent," was not actually obscene. The broadcast at issue then was a 12-minute monologue by the comedian George Carlin, titled "Filthy Words," that deliberately challenged federal regulators by highlighting "the words you couldn't say" on the public airwaves.

For years after that ruling, despite its victory, the F.C.C. exercised its power with a light hand, disclaiming the authority to punish fleeting words that did not reflect "deliberate and repetitive use in a patently offensive manner," as the commission said in a public notice in 1987.

The approach changed soon after that, when the NBC broadcast of the 2003 Golden Globe Awards drew complaints for the expletive that the singer Bono used as an adjective to express his delight at receiving an award for best original song.

A coalition of broadcasters challenged the new policy in the United States Court of Appeals for the Second Circuit, in New York, raising constitutional and statutory objections. In a 2-to-1 ruling last June, the appeals court did not address the First Amendment challenge directly. Rather, it held that the commission had violated ordinary principles of administrative law by making "a dramatic change in agency policy without adequate explanation." The appeals court vacated the commission's order, instructing the F.C.C. to "articulate a reasoned basis for this change in policy."

At the same time, the appeals court majority made it clear that any explanation would face a high hurdle. "We are skeptical" that any explanation "would pass constitutional muster," the court said in an opinion by Judge Rosemary Pooler.

Noting that all the words at issue were "fully protected by the First Amendment," Judge Pooler continued, "We are sympathetic to the networks' contention that the F.C.C.'s indecency test is undefined, indiscernible, inconsistent and, consequently, unconstitutionally vague."

Source

Why not just shield kids from life and be done with it?

It does seem that the FCC has gone too far and that the court will not support it. By fining broadcasters huge amounts the FCC set themselves up for a court challenge.


Posted by John Ray.