The FCC, the Supreme Court and policing indecency

The Supreme Court will be asked Tuesday to invalidate a Federal Communications Commission policy that punishes broadcasters for spontaneous vulgar utterances — so-called fleeting expletives. That’s an easy call, but the justices face the harder task of deciding whether advances in technology have undermined the rationale for any governmental policing of indecency on television.

The fleeting expletive cases involve the use of the “F-word� or a variation on it by Cher and Nicole Richie on live award shows broadcast outside the FCC’s “safe harbor� for adult programming, from 10 p.m. to 6 a.m. The court also will review FCC action against the filmed program “NYPD Blue� for showing partial nudity in an episode aired at 9 p.m. in some time zones.

Punishing a broadcaster for inadvertent remarks over which it has no control makes no sense. Indeed, the FCC recognized as much until a policy change in 2004. But in examining the cases, the U.S. 2nd Court of Appeals went further than invalidating the rule; it struck down the FCC’s entire indecency policy as unconstitutionally vague, noting that the agency used subjective criteria. For example, coarse language in the prime-time broadcast of the film “Saving Private Ryan� was considered acceptable, as is vulgarity in a “bona fide� news program — a term open to multiple interpretations. The appeals court persuasively concluded that such unpredictability chilled protected speech, and it cited the example of a 9/11 documentary some CBS stations declined to air because it included occasional expletives from firefighters.

But if the FCC can’t protect children from indecency on the airwaves, parents might ask, wouldn’t that threaten their innocence? That concern assumes inaccurately that broadcast television and radio are still the only or principal media that expose children to unsuitable material. In 1978, in the famous “seven dirty words� case, the Supreme Court upheld FCC action against a radio network for airing a vulgarity-laced monologue by George Carlin. In doing so, it referred to broadcasting’s “uniquely pervasive presence in the lives of all Americans.� But today children are just as likely to be exposed to adult fare through cable TV, whose content is not regulated by the FCC, or video recordings that render obsolete the idea of “family viewing time.� And the appeals court noted that every new television and digital converter box contains a V-chip.

Certainly the Supreme Court should reject the FCC’s fleeting expletives rule. But it needs to recognize that the day is fast approaching when it will have to decide whether the FCC should be in the business of policing indecency at all.