FCC Indecency Stance Could Spur Wide First Amendment Fight
Courts likely won’t uphold recent FCC indecency rulings, contested by the 4 major networks and affiliates, veteran media attorneys and industry observers said. NBC, CBS, Fox, ABC and affiliates late last week filed actions in multiple federal courts, arguing the Commission violated the First Amendment in labeling certain broadcasts of profanity as “obscene” in a March 15 ruling (CD March 17 p1) in which it also issued a wide variety of fines.
The suits address FCC decisions labeling broadcasts indecent but imposing no fines. “In filing these court appeals we are seeking to overturn the FCC decisions that the broadcast of fleeting, isolated -- and in some cases unintentional -- words rendered these programs indecent,” said the networks, affiliated stations and Hearst-Argyle in a joint statement Fri. The suits are the first of several observers expect against the indecency rulings. Attorneys for Sidley Austin and Davis Wright Tremaine represent the networks. NAB and the FCC declined to comment.
The networks have a strong case, media attorney Bruce Sanford said: “It falls right under the language in Spizer v. Randall, where the Supreme Court said the problem with this kind of labeling is it forces people to steer far clear of dangerous zones and, as a result, they self-censor.” The suit calls into question FCC rulemaking in the indecency area, said Sanford and others. “It would be extremely difficult to believe that the courts will uphold what the FCC has done here,” Adam Thierer of the Progress & Freedom Foundation said: “It’s just so utterly arbitrary that I don’t think most judges will be able to rationalize or stomach it.”
“A real wild card here is the extent to which the courts will consider [their] own recent jurisprudence on Internet cases,” said Thierer. Laws such as the Communications Decency Act all have been voided, and it will be interesting to see how courts reconcile that body of Internet jurisprudence with traditional broadcast jurisprudence, said Thierer.
FCC indecency rules can’t survive constitutional review, attorneys for a Fox affiliate and News Corp. said in comments filed Fri. with the FCC. The FCC fined Fox and its owned stations for broadcasting The Pursuit of DB Cooper because the film’s characters used the word “shit” multiple times. “The massive expansion of cable and satellite video programming, together with the advent of the Internet, renders obsolete the second-class treatment of broadcasters under the First Amendment,” News Corp. lawyers said in the filing. And a Commission decision to label Fox’s broadcast indecent breaks recent FCC precedent, they said. The Commission found an ABC broadcast of the film Saving Private Ryan didn’t cross over into obscenity, despite much profane language, the attorneys said: “There is no logical reason why material that was deemed essential to tell a war story in Saving Private Ryan should be any less essential when portraying a fugitive on the run.”
Networks and affiliates likely will buck other recent rulings on indecency, attorney Charles Naftalin said: “The decision about the famous ‘wardrobe malfunction’ at the Super Bowl” would be reviewed “if CBS wants to go there.” Part of the problem with the March 14 ruling is that the Commission used unsettled cases such as the Super Bowl incident as precedent, Naftalin said. CBS didn’t comment beyond the networks’ joint statement. But CBS affiliates recently asked the FCC for more time to respond to the fines (CD March 12 p11).