Five nonprofit groups recently filed an amicus brief (PDF) in FCC v. Fox urging the Supreme Court to strike down the FCC’s policy of fining broadcast television stations for airing indecent content. The groups argue that the FCC’s policy violates the First Amendment’s free speech protections.
During two Fox broadcasts of the Billboard Music Awards in 2002 and 2003, presenters used fleeting expletives. Following the broadcasts, the FCC prohibited “single uses of vulgar words” and issued notices of liability to Fox. Prior to this broadcast, the FCC had taken the position that fleeting and isolated expletives did not violate its indecency policy.
In 2009, the Supreme Court ruled that the FCC’s rule change was not arbitrary or capricious, but sent the case back to a lower court to decide the policy’s constitutionality.
In 2010, the Second Circuit held that the FCC’s indecency policy was impermissibly vague in violation of free speech. The Second Circuit reasoned that the First Amendment places a special burden on the government to ensure that restrictions on speech are not impermissibly vague. The FCC’s guidelines, however, were unclear, depended too much on context, and therefore promoted wide self-censorship by networks.
Although the Second Circuit overturned the FCC’s policy, it refused to reach a critical issue—whether the FCC may place greater restrictions on broadcast radio and television than on other forms of media. This distinction was first articulated in Pacifica.
In Pacifica, decided in 1978, the Supreme Court noted that radio and television broadcasts occupy a “uniquely pervasive presence in the lives of all Americans.” The court held that broadcast media is so pervasive and accessible to children that restrictions against it will be subject to less scrutiny.
Over the summer, the Supreme Court agreed to rehear F.C.C. v. Fox to decide whether the FCC’s indecency-enforcement regime is constitutional.
The recently-filed amicus brief argues that the Supreme Court should reverse its 1978 Pacifica decision. When Pacifica was decided, neither the internet nor cable television were widely available. Today, cable television and the internet are almost as pervasive as broadcast television. As the Second Circuit noted, “we face a media landscape that would have been almost unrecognizable in 1978.” Over three-quarters of Americans use the internet and 87% of households subscribe to cable or satellite. Broadcast television should receive the same First Amendment protections as newspapers, cable television, and the Internet.