American Bar Association Midyear Meeting

Media’s Free Speech in Jeopardy
By Jack Edison

BOSTON – Broadcast networks fear that they will not escape government censorship. If the U.S. Supreme Court rules this summer against Fox Broadcasting Company in the case Federal Communications Commission v Fox Television Stations, then documentaries, dramas, reality shows, and live events containing curse words would face government intervention.

This is the first case heard by the Supreme Court concerning the broadcast of indecent material since the court’s 1978 FCC v Pacifica Foundation ruling. In that decision, the Supreme Court maintained the commission’s authority to fine broadcasters for uttering inappropriate words on national television.

The American Bar Association’s midyear meeting held in Boston invited a panel of four lawyers to talk about the future of broadcasting and government regulation.

FCC v Fox Television Stations is the first case in 30 years to challenge the government’s role in moderating “fleeting expletives,” or indecent words and actions. Russell Frisby, the event’s moderator and the partner-in-charge of the Telecom Group of Fleischman and Harding, L.L.P. in Washington D.C., called this “a period of change at both the FCC and in the communications area in general.”

The FCC ordered in 2006 stations to banish single instances of indecent language because of curse words said by Cher, Nicole Richie and Bono during the preceding years. Up until 2006, the FCC had not interfered with broadcast networks when isolated instances of fleeting expletives surfaced.

Broadcasters received fines after 2006 from the FCC for isolated incidents involving indecent material. “Indecency can be mild nudity. It can be words. It can be sexual innuendoes,” stated Maureen O’Connell, senior vice president of Regulatory and Government Affairs for News Corporation, which owns all FOX stations.

FCC Deputy General Counsel Joe Palmore accepted O’Connell’s definition of indecency, but claimed that it is the commission’s job “to strike the appropriate public-interest balance when private actors use or provide access to public networks.” Joe also stressed that the 2006 order “did not impose any penalties” on the broadcaster. It only suggested that networks take more initiative to protect children from harmful material.

The FCC, however, is not universally enforcing its new policy. Palmore stated that the “commission’s decision not to enforce an across-the-board stand on these words could not be irrational since it was the direct result of a contextual approach to indecency that was discussed and endorsed by the Supreme Court in the Pacifica decision itself.”

“In the case of ‘Saving Private Ryan,’ where you have soldiers storming the beach at Normandy, it is one thing for [indecent] words to be used. Whereas when you have a celebrity such as Nicole Richie, casual talking off the words during an award show with a lot of children in the audience, it is something different,” said Palmore, smiling at the chuckling crowd.

O’Connell disagreed with Palmore and insisted that the FCC’s contextual approach to censorship violates the First Amendment. She countered Joe’s example with one involving a Martin Scorsese documentary.

The FCC fined a PBS station in San Mateo, Calif., $15,000 because it aired a documentary on the blues in which the musicians and producers used foul language. “Apparently, if the expletives had been said by blues performers and not by the label owners or record producers, they would not have gotten fined,” exclaimed Maureen. “This is the government sitting in the editing booth at our TV studios telling us what to do. That’s not taking context into account.”

There are ways for the audience to self-censor television broadcasts. Viewers have relied on the V-Chip to filter out indecent programming for children. But the FCC is not satisfied with the V-Chip’s ability to block shows. Ratings can be confusing, said Palmore, and “while there is some blocking technology today, the commission has found as a factual matter that the blocking technology is ineffective.”

“Parents can choose to use it or not,” O’Connell replied. She also added that parents must take an active role in monitoring shows their children watch. “When my daughter was young, this was my V-Chip: The on/off switch on the television.”

The outcome of FCC v Fox Television Studios “depends on how the Supreme Court decides to frame the case, broadly or narrowly,” admitted Palmore. The networks want a broad decision, encompassing the First Amendment, while the commission prefers a narrow one.

The U.S. 2nd Circuit Court of Appeals expressed doubt that the 2006 policy would pass constitutional muster under the First Amendment. Pending FCC cases against broadcast networks will wait for the Supreme Court ruling in FCC v Fox Television Stations before proceeding, agreed O’Connell and Palmore.