Supreme Court Will Review the FCC's 'Indecency' Ban

Today the Supreme Court agreed to review a 2010 decision by the U.S. Court of Appeals for the 2nd Circuit that overturned the Federal Communications Commission's ban on broadcast "indecency." In 2007 the appeals court said the FCC's newly minted policy regarding isolated expletives (such as Bono's 2003 remark that receiving a Golden Globe award was "really, really fucking brilliant") was "arbitrary and capricious," in violation of the Administrative Procedure Act. The Supreme Court disagreed in 2009, sending the case back to the 2nd Circuit for further consideration. Last July the appeals court threw out not just the FCC's ban on fleeting profanity but its entire indecency policy—which bans "patently offensive" sex- and excretion-related material from broadcast TV and radio between of 6 a.m. and 10 p.m.—on First Amendment grounds. The 2nd Circuit said the "context-dependent" policy was so vague and subjective that it chilled a broad range of constitutionally protected speech. Asking the Supreme Court to overturn that decision, the Justice Department warned that it would "preclude the FCC from carrying out its statutory responsibility to ensure broadcasters honor their long-standing obligation not to air indecent material."

As if that's a bad thing. This is the Court's chance to say that "long-standing obligation," which for no logical reason applies to broadcast TV and radio but not to cable, satellite, or Internet stations, is inconsistent with the First Amendment. The Court's recent decisions regarding depictions of animal cruelty and violent video games, both of which focused on the dangers of restricting vaguely defined categories of speech, suggest it may well agree with the 2nd Circuit that the FCC's current rules are unconstitutional. But unless the Court revisits FCC v. Pacifica, the 1978 ruling that approved content regulation of radio and TV, the FCC will get to try again, in which case its absurd, antiquated policy of censoring an arbitrarily selected class of programming will continue for at least one more round of litigation. 

SCOTUSblog has background on the case, FCC v. Fox Television Stations, here. More on broadcast indecency here. Family Guy on "The Freaking FCC" here:

Comments

[The Free Press]

But unless the Supreme Court revisits FCC v. Pacifica, the 1978 ruling that approved content regulation of radio and TV, the FCC will get to try again, in which case its absurd, antiquated policy of censoring an arbitrarily selected class of programming will continue for at least one more round of litigation.

We believe that the FCC and Pacifica should merge as one.

[Libertymike]

F-Foreign to
C-Constitutional
C-Conception

[Libertymike]

There is no constitutional grant of authority given Congress to create a Federal Communications Commisssion

[Mnemone Jones]

There is no constitutional grant of authority given Congress to create an Air Force.

[rather]

Are you saying we will never have intergalactic military forces to kill of those bugs?

[Enough About Palin]

"Are you saying we will never have intergalactic military forces to kill of those bugs?"

But enough about your crotch crickets.

[rather]

Enough About Palin, you bastard! Are you saying you gave me crabs?

[Libertymike]

Oh, well, life would surely be unbearable if the empire was deprived of its air assault component of its mass murdereing capabilities.

[PIRS]

One could argue that the Air Force is an "army". Using the language of the period it would be - or maybe a "navy" would be a better equivalent. Either way it is constitutional - as long as it is not a standing army. If you want to argue against it a better argument is to call it a "standing army" and say THAT is unconstitutional. Of course defenders of the Air Force could argue it is more like a navy ? a weak argument given that the Air Force grew out of the Army Air Corps.

[Zeb]

Why do we even have an airforce when the army, navy and marines all have their own planes?

[PIRS]

Mostly because of the Cargo aircraft. And so octogenarian military retirees can go to Germany on a pension income.

[Tonio]

A better question is why do the Army and Navy (incl Marines) have planes when we have a perfectly good Air Force.

Anyway, army aviation is limited to transport and cargo fixed-wing aircraft, but operates all the combat helicopters on the theory that these provide close support for ground combat (ie, the Army's primary mission).

Navy fixed-wing aircraft have to be capable of taking off from an aircraft carrier. Marine fixed-wing aviation, in addition to being carrier launchable, are restricted to close air support of ground troops.

[John Thacker]

A better question is why do the Army and Navy (incl Marines) have planes when we have a perfectly good Air Force.

Yes, yes, you give one point of view. Another point of view is that because the Air Force is really only interested in awesome fighters, with maybe launching nukes second, and really doesn't give a shit about landing on carriers or especially boring support of ground troops and transportation and so forth.

The Air Force generally doesn't want to support ground troops, but at the same time doesn't want the Army to have real fixed-wing aircraft to do it either.

[SFC B]

The Army doesn't have organic fixed-wing airframes (with the exception of a handful of Gulfstream-like planes for the VIPs). The who reason the Army spends as much money on helicopters that they do is to have some sort of organic transportation and CAS assets.

I recall the Army offering to take over the A-10 from the USAF whenever the USAF tries to cut it. Ground troops love them some Warthog.

[GILMORE]

Zeb|6.27.11 @ 2:23PM|#
Why do we even have an airforce when the army, navy and marines all have their own planes?

Sigh.

Because we need someone to babysit *the Nukes*, dude. And also someone to maintain the satellites and shit.

That aside, the whole, "what the hell does the air force even *do*?" question is surprisingly common, and in fact fairly apropos. Aside from running the refueling ops... I really don't think they do dick in terms of combat air support. Maybe the b52s we used in Afghanistan back in 2001. I dunno, I just recall reading an article (I think it was Kagan in The Atlantic) a while back talking about the 'modern air force', and mentioning that while air-power was still important (though declining), the actual air force was mostly an anachronism from the Cold War era in which we maintained a 24-hour Strategic Air Defence a la Dr. Strangelove...

The nice thing about the air force is that they at least provide all the other services with someone to shit on. I think even the Coast Guard is allowed to mock the 'chair force'.

(*note: in all seriousness I have equal respect for all servicemembers, myself coming from a military family; i also had a very good friend who was an air force PJ/CCT - basically, their version of 'special operations' - , who eventually died of leukemia almost certainly derived from 'gulf war syndrome' (Gulf I).

That said, even HE made fun of the air force. I think people in the Air Force make fun of themselves regularly... or at least the fact that everyone else makes fun of them is something of an amusement.

[Paleo]

The Air Force was originally the Army Air Corps, which was an evolution of technologies in providing for the national defense, which is a --if not the-- legitimate purpose of the federal government.
This is the same kind of evolution of technologies by which we see internet blogging as protected under freedom of speech, though often no actual speech (vocal cords, tongue, so on) is being used, and/or under freedom of the press, even though there is no plate (or blanket cylinder or photostatic loop) being pressed to paper or any other surface.
Unless you contend that dividing it off as its own branch of the military makes it unconstitutional, where re-integrating it with the Army would make it constitutional again, I don't see an actual point you're trying to make.

[OO]

doesnt say they cant either despite other prohibitions in the constitution

[Hugh Akston]

If the drafters didn't want the Federal government to regulate radio, television, and the internet, they would have said so specifically in the Constitution.

Or at least something about not restricting the freedom of speech.

[Libertymike]

Had the framers wanted the feds to regulate the airwaves, they would have so said.

You got it assbackwards.

[Hugh Akston]

You need to calibrate your sarcasm detector. This video should help.

[Spencer]

Or maybe just learn how to read.

[Libertymike]

Yes, lately my passion elevator has been going to the top at warp speed; it is widely known that one's sarcasm detector may be impaired when one's passion elevator goes to the top at warp speed.

[Paul]

FYI, that video contained Canadians...

[Hugh Akston]

Does that mean you can only calibrate metric sarcasm detectors against it?

[Paul]

I just felt it should be noted. That, you know, Canadians are among us.

Often where you least expect them.

[wylie]

"No one expects the Canadian Immigration"?

[Hugh Akston]

I don't like what you're implying.

If you're insinuating that I am a spy, or that any member of my family is a spy, then you're way off base! You don't know what you're talking aboot.

[Paul]

You don't know what you're talking aboot.

Eh?

[Philosoraptor]

We're no longer using scarce spectrum to broadcast television, so the FCC's one shred of an argument is gone. Abolish it.

[SugarFree]

One TV station might overlap with another and they might not be able to resolve it themselves through the courts... so of course we need a massive Federal agency to fine people who say naughty words or flash a hideous boob.

[Restoras]

...and it was hideous.

[Enough About Palin]

Seconded

[P Brooks]

Employing armies of government lawyers to argue and appeal cases against opposing armies of government lawyers is what made America great. We cannot afford to cut this sort of vitally important spending!

[AlmightyJB]

When they talk about indecency on tv, they're talking about The View, right?

[Mainer]

I lol'ed

[Paleo]

I find seeing Bono on TV offensive. Not what he specifically said. Just Bono.

[Fist of Etiquette]

This is the Court's chance to say that "long-standing obligation," which for no logical reason applies to broadcast TV and radio but not to cable, satellite, or Internet stations...

This just in: Reason contributor calls for the FCC to regulate cable, satellite and Internet stations.

[Jeff P]

As a broadcaster I am exposed daily to:
1: The Flirty Girl Pole Dancercize infomercial.
2: The Ah-Bra infomercial.
3: Grey's Anatomy. For gods sake women, put some clothes on.
4: Mike Franseca's corpulent man-boobs swaying as he get's worked up about some play in a ball game like it fucking matters.
5: Multiple episodes of How I Met Your Mother, which may qualify as a biohazard in certain climates.
6: Dog the Bounty Hunter. This is an actual show and not an extended Mr. Show sketch.
7: Hoarders.

[Jeff P]

It should be noted that if a 1970s broadcast station had aired a show where a woman lifted up a box full of unwashed McDonalds glasses and found a cat's long-dead corpse feeding the local bug population, the station would have lost its license.

[Sudden]

a woman lifted up a box full of unwashed McDonalds glasses and found a cat's long-dead corpse feeding the local bug population, the station would have lost its license.

You literally found the absolutely perfect situation to make my black lentils, bruschetta, and feta salad go from tasting amazing to looking like the most unappetizing meal I've ever had. Thanks a lot Jeff, that's the equivalent of putting Anthony Weiner's face on a Blake Lively body.

[SugarFree]

Is that dish normally served in an unwashed McDonald's glass?

[Sudden]

No way, I'm a class act. Nothing but non-biodegradable styrofoam plates for me.

Although that salad is a recent discovery of mine and, aside from bearing an uncanny resemblence to a troop of bugs and maggots feasting on the bloody innards of a not so long dead cat, it is fast becoming a staple of my diet and far more nutritious than my usual staples like cha su bao and beer.

[SugarFree]

I actually make something similar, only I add sausage and serve it warm and not over bread.

[Jeff P]

I had "fuck with Sudden's lunch" penciled on my blotter calendar and realized it was getting late...

Also, "this looks like an episode of Hoarders!" may be the perfect food critique.

[Jeff P]

I am reminded of those cuisines where food is prepared to look like other things. This theme needs to be explored.

"These raspberries & ramen in aspic is a playful take on wood wasp larvae gestating in the eye-tissue of a paralyzed-but-still-living rat. And it's delicious."

[wylie]

Get Zimmern to host, I'll watch that show.

[John]

If only lefties would hold Al Gore to the same standards they hold Bono.

[PantsFan]

there you go killing the messenger again

[Spencer]

I remember during the gov't shutdown in the 90's we (teenagers) called the local radiostations to cuss without getting bleeped. It was awesome (for a 14 year old).

[John Thacker]

They are also reviewing the "install a GPS in your car and operate it without a warrant" case.

[PantsFan]

FUCK THEM

[jcalton]

1st Amendment aside, how they hell is this even within the FCC's purview? They are (ostensibly) there to make sure that there are no conflicts on the airwaves.

Saying the f-word doesn't give your signal a boost into the broadcast spectrum.

Can't they just skip this line of reasoning and say that the FCC has no authority to regulate what is broadcast whatsoever?

[Paul]

Mission creep, meet jcalton, jcalton, meet Mission Creep:

http://reboot.fcc.gov/parents/.....od-obesity

[jcalton]

Yeah, that's annoying, but it's completely voluntary. Nobody is going to be fined half a million dollars for not getting on board.

I strongly prefer when the government's nanny tendencies only take the form of recommendations and guidelines. Christ, how lucky would we all be if that's all it ever did--recommend things?

[Paul]

When the government floats a "voluntary" trial balloon like this, why does it still make me nervous?

And why the FCC? Why not the CDC?

The fact that there is an office-- or whole floor full of FCC employees and managers, leading all the way to the top-- working on this gives me the shivers.

The moment this memo showed up on a desk at the FCC, it should have been put back in the interoffice folder with a sticky note on it with the stern comment: "This is not the mission of the FCC, please get back to work or we'll have you investigating spectrum bleed on a remote island in the Aleutians."

The fact that it's now a valid, functioning program with a budget, and employees assigned to it makes me weep for my country.

[John Thacker]

The line of reasoning for the spectrum is somehow that spectrum broadcast is pervasive. Apparently people might somehow unwillingly be able to see the boobs in the electromagnetic waves.

[wylie]

EM waves make images of boobs spontaneously appear in my head. (That's my story and I'm stickin to it.)

[JEP]

From an engineering perspective, the E&M spectrum is limited in so far as we have not developed the technology to broadcast on every wavelength yet. With that in mind, the spectrum is limited and the FCC is supposed to regulate the spectrum.

This involves selling bands of the spectrum for certain services. They can also decide that if a company is not using the band efficiently, ie not sufficiently reaching the capacity of the channel, then they can sell that band to a company that will make better use of it.

The censorship thing I don't really get at all...

And I haven't really thought about a "free market" alternative to government regulation as far as use of the E&M spectrum is concerned...

[Paul]

The overarching mission of any government agency is to do good.

If the FCC sees an opportunity to do good which extends beyond its dry, bland task of doling out spectrum segments, it's an opportunity that should be seized.

[JEP]

I agree, just pointing out that FCC has one legit purpose, but like every other agency has drastically inflated their own responsibility.

[wylie]

the E&M spectrum is limited in so far as we have not developed the technology to broadcast on every wavelength yet.

I think there are some absolute physical limits involved that prevent such a development from happening. Like how you'd need the whole audio-range of freqs for sufficient bandwidth to transmit one channel of a decent quality signal. Or how the waves become more directional the higher the freq, and so broadcasting wouldn't really be so broad. "Broad"casting at 400thz would be shooting a red laser at the receiver...doesn't really serve the same purpose as "airwaves".

The tech exists to transmit information with practically any range of frequencies, it's just a matter of practicality/efficiency.

[JEP]

Yes, there are physical limits.

I was thinking in the terms that we can't generate a signal that switches an infinite number of times a second...therefore we can't generate a frequency of infinity, therefore our transmit spectrum is limited.

If you're using digital modulation, you can transmit a very decent audio signal by using compression, etc. - But yes, I see your point.

[jcalton]

Hope everyone has seen this:
Ron Paul v. Anthony Weiner on FCC censorship

Weiner actually began a sentence with: "If we don't regulate what people can see and hear..."

[Paul]

Relink. The FCC must have gotten to your packets.

[GILMORE]

Weiner actually began a sentence with: "If we don't regulate what people can see and hear

I kind of want to know how that sentence ends now...?

[GILMORE]

Link = http://www.youtube.com/watch?v=vk1IIMAy-Xo

I can't actually WTFV, as I am workin. Kinda.

[Paul]

But seriously:

"If we don't regulate what people can see and hear in these forums, children in particular will be exposed to material that is completely inappropriate."

That is the whole sentence.

[Paleo]

"Inappropriate" to whom?
I should be deciding what's appropriate to my kid, not the FCC.
How is it that lousy morals, dull plots, moronic dialogue and senseless violence are all appropriate, but 'rough' language and simple nudity aren't?
The best of Western literature and art would be prohibited, while stupidity that's literally mind-numbing would be passed with an insipid smile.

[Somalian Road Corporation]

I'm surprised I haven't come across that clip before in the Weinergate saga. Rather amusing.

[Paul]

I kind of want to know how that sentence ends now...?

"...people will re-tweet my junk!"

[Hugh Akston]

WRT to the video, the only person who lives in more fear of a picture of a vagina than the FCC is Seth McFarlane.

[np]

which for no logical reason applies to..
ah yes, logic and reason, where has thou gone?

Boston Federalist newspaper, the New England Palladium, 1800: "that infidel Jefferson should be elected the seal of death is set on our holy religion and some infamous prostitute under the title of the Goddess of Reason will preside in the sanctuaries now devoted to the worship of the Most High."

[Boxbot]

For a worshipper of the Goddess of Reason, Mr. Jefferson most assuredly wants for a reasonable nature.

[jtuf]

Last July the appeals court threw out not just the FCC's ban on fleeting profanity but its entire indecency policy?which bans "patently offensive" sex- and excretion-related material from broadcast TV and radio between of 6 a.m. and 10 p.m.?on First Amendment grounds.

Finally, kids won't have to stay up past midnight to watch these shows. Now they won't be falling asleep in class, like I was when I was in high school.