Obama Administration Asks Supreme Court To Determine If FCC Can Fine ABC For Showing Charlotte Ross Naked

from the questions-of-our-time dept

There have been a series of legal questions concerning the FCC’s right to fine TV companies for “indecency” on broadcast television. If you haven’t been playing along with the home game, hopefully this will catch you up. While the FCC didn’t do much in the way of fines for TV for a while, over the past decade, it suddenly took an interest (mainly under the leadership of former boss Kevin Martin). So, it issued fines over things like some “fleeting expletives” during awards shows (rockers saying “fuck!” on live TV), Janet Jackson’s wardrobe malfunction and NYPD Blue’s decision to display actress Charlotte Ross’s bare behind in a shot. Back in 2007, the Second Circuit appeals court ruled that the FCC’s rules on fleeting expletives were invalid because they were arbitrary and capricious. The Supreme Court, however, reversed, saying that the rules didn’t seem all that arbitrary or capricious at all. However, none of those rulings touched on the First Amendment questions. Instead, they just focused on the validity of the FCC’s rules in general.

So, now all of these cases are making their way through the courts again, with the Second Circuit again rejecting the FCC’s fines in both the fleeting expletives case and the NYPD Blue case, stating that even if the rules are not arbitrary and capricious, they do violate the First Amendment, and create a chilling effect on speech. The ruling on fleeting expletives was especially good, and was clearly written with the Supreme Court in mind, knowing that it would almost certainly hear this case, eventually.

Some had thought that the Obama Justice Department might just let this matter drop, as it wasn’t a huge concern. However, it has now petitioned the Supreme Court to review both cases, and to support the FCC’s right to censor broadcast TV.

Of course, as the Second Circuit made clear in its ruling, the whole purpose of the FCC issuing such fines is outdated and silly. It was based on the fact that only the TV networks could really reach such a wide audience and thus had to be carefully monitored. In this digital era with the internet, does it really matter if someone hears a stray curse on TV? It’s just as likely that they’ll find much worse online. And, in fact, as we’ve pointed out, the FCC’s action and subsequent lawsuits have driven a ton of views of the clip of Ross’s bare butt online. In fact, at one point, it was one of the top videos on YouTube. That makes the whole FCC process seem pretty pointless if the idea is to try to “block” access to this content, doesn’t it?

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Comments on “Obama Administration Asks Supreme Court To Determine If FCC Can Fine ABC For Showing Charlotte Ross Naked”

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Cynthia Meyers (profile) says:

Protecting children from pervasive waves

The rationale behind the limitation on broadcasters’ First Amendment rights originates in an impulse to “protect” children. When broadcasting was a new technology, many were upset that “pervasive” waves could penetrate their homes, that they had no control over what was carried on those waves. The fear that children could be exposed to harmful broadcasts was eventually crystallized in the Pacifica case, in which WBAI had to pay a fine for airing George Carlin’s monologue about dirty words because a listener claimed his teenage son overheard it. Of course, how children are ever harmed by indecency has never been proven!

The indecency regulations also arose when broadcasters had a monopoly over spectrum. Competition from cable programming, not to mention online media, make that concern over monopoly control moot. And broadcasters now complain that they cannot compete effectively with other media with full First Amendment rights–having to constantly second guess when the FCC will enforce indecency regulations.

Really, it’s a classic case of old media standards (and old moral panics about a formerly new technology) hanging on well past relevancy.

Rekrul says:

The Supreme Court, however, reversed, saying that the rules didn’t seem all that arbitrary or capricious at all.

How are they not arbitrary? They try to fine ABC for showing a bare butt after 8PM, but yet Baywatch, which aired in syndication for most of its life (meaning it was usually on at around 4-6PM on the weekends) could show women in thong bathing suits? They tried to fine the network over Janet Jackson’s bare breast, but yet I remember watching one of those network miniseries about World War I that showed full frontal nudity in some of the concentration camp scenes.

If that isn’t the definition of “arbitrary”, I don’t know what is.

chris says:

Well, if the FCC can’t impose fines how are they supposed to act as a regulatory body? I think the reasoning is that since the networks have exclusive use of a chunk of radio spectrum which has to be licensed from the FCC, it could come with some strings. Same as for radio. Also, those that saw the clip on Youtube knew full well what they were getting. Your comparing apples to oranges. On the other hand, I have no doubt that such regulations *will* end up being enforced randomly. Whether that means we should dump them altogether is something I’m undecided about.

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