On Tuesday, the Supreme Court will hear arguments in FCC v. Fox Television Stations, marking the first time in 30 years it has taken up broadcast regulations on decency and language.
Until now, the guiding principle on indecency has been the Supreme Court's 1978 decision in FCC v. Pacifica Foundation, which arose from a listener complaint to an afternoon airing of George Carlin's "seven dirty words" sketch. The Court's decision gave the Federal Communications Commission authority to regulate broadcast content when it has reason to believe children might be in the audience.
The current indecency case arose out of three incidents. During the 2002 Billboard Music Awards show, Cher said, "People have been telling me I'm on the way out every year, right? So [expletive] 'em."
During the 2003 Billboard show, Nichole Richie said, "Have you ever tried to get cow [expletive] out of a Prada purse? It's not so [expletive] simple."
Initially, the FCC ruled that the language amounted to "fleeting" exclamations. But after U2's Bono celebrated a moment as "[expletive] brilliant" during the 2003 Golden Globe Awards, the commission changed its policy, declaring any use of vulgar words on the air illegal.
FCC Chairman Kevin J. Martin has sided with content watchdog groups like the Parents Television Council, who want the government to "do something" about what they see as the growing coarseness of television and radio content. Martin has also made no secret of his desire to expand his power to include cable and satellite, where the laws of broadcast decency don't apply. No regulatory body likes to see its influence diminished, but about 85 percent of Americans now subscribe to cable or satellite television services.
To these Americans, there's little distinction between over-the-air broadcast, cable and satellite service. Retaining different content rules for broadcast outlets, because they use a big antenna to broadcast entertainment, is arbitrary and capricious. The FCC would like the decency laws that apply to over-the-air broadcasters to be applied to cable and satellite. The opposite is true. In this day and age government should not have any role at all in regulating content.
It's not the government's job to be the guardian of taste or a filter against coarseness. People choose to have televisions in their homes. And if you make that choice, it is your responsibility to monitor what your kids watch. Martin and the nanny staters might not like to hear it, but with hundreds of TV and radio channels, the bulk of the responsibility for content control falls on to the individual household. The tools are available and easy to use. As a parent of a 5-year-old I can sympathize with the challenge but attest to its being the most effective solution.
Numerous cable television stations define their brand by appealing to families and offering programming suitable for all audiences - Nickelodeon, Disney Channel, Discovery are just a few examples. Mandating that all TV and radio entertainment be appropriate for viewing by 9-year-olds is unworkable. Digital video recorders, which allow viewers to record shows and watch later at their leisure, have made government-designated "family hours," a thing of the past.
Somewhere, at this very moment, there's something on TV and radio that is offending someone. From a legal and constitutional point of view, one hopes the Supreme Court concludes that it is far wiser for folks to just change the channel, or turn the TV off, than it is to let the FCC play nanny and censor.