The federal government’s battered policy against what it considers to be “indecent” programming on television has weathered two showdowns in the Supreme Court in the past three years. But, on Thursday, the Court impliedly posed a question: whether that Federal Communications Commission policy — if left as is — would survive a third such encounter. The signals were not promising for the FCC.
The new ruling in FCC v. Fox Television Stations, et al. (10-1293), of course, did not strike down the policy. It nullified specific orders by the FCC enforcing its policy, and avoided the First Amendment issue altogether. FCC thus does retain the option of going right ahead to regulate broadcasts of single uses of four-letter words and momentary glimpses of provocative nudity, as if nothing had changed. It also has the option of reconsidering, but anything new it writes will again be tested constitutionally, so either way, there will be a third round.
A decision today by the Supreme Court regarding the FCC's regulation of indecency in television broadcasts is being widely misreported in mainstream media as authorizing nudity and profane language on television. The decision actually struck down a pair of FCC decisions enforcing its regulation on grounds that the regulation as applied in those two cases was too vague to put broadcasters on notice that their particular broadcasts crossed any legally definable line. As discussed in the linked article, the decision does not prohibit the FCC from enforcing its regulation in differering situations. The FCC may continue to so or more likely will rewrite its regulation to be more explicit. The decision therefore sets the stage for a later case that might reach the First Amndement constitutional issues. In other words, mainstream media gets it wrong again.