Supreme Court Indecency Ruling Leaves FCC Indecency Rules Unclear For Public Broadcasters
A Supreme Court ruling against FCC indecency actions lacks clarity for public broadcasters to determine what makes content indecent or obscene, said attorneys and executives in the public broadcast industry. Although indecency issues aren’t common in public broadcasting, the ruling doesn’t provide a clear context for some programming that may contain sensitive subjects, they said. In Thursday’s decision, the Supreme Court threw out a commission censure of News Corp. for curse words and a fine against some stations affiliated with Disney’s ABC for nudity (CD June 22 p1). The court determined that the FCC failed to notify the networks that broadcasting so-called fleeting expletives or nudity could result in fines or censure.
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It’s likely that public broadcasters are just as disappointed as their commercial counterparts, said Todd Gray, a Dow Lohnes attorney who represents some noncommercial broadcasters. “Overall, the indecency issue isn’t as big a problem for public broadcasters,” and complaints against public broadcasters are a bit more rare, he said.
The FCC’s next steps could draw input from the public broadcasting community, said lawyer John Crigler of Garvey Schubert, who represents non-commercial stations. The ruling is “a friendly warning to the commission that it’s got one more chance to fashion an indecency policy that will stand a better chance of surviving a First Amendment challenge,” he said. The commission will probably invite comment on its policy and solve the notice issue that the court identified, which could drive public media to make its case around whether the merit of a program should count, he said.
It’s still unclear “how to deal with serious subjects that may touch on sexual matters without running the risk of life-threatening fines,” Crigler said. He pointed to the indecency action by the FCC against KCSM-TV San Mateo, Calif., after it aired the documentary The Blues: Godfathers and Sons, whose audio track includes profanity (CD March 30/06 p2). “It’s almost absurd that those programs are either being suppressed or edited out of fear from the FCC,” Crigler said.
Interpreting content is still of concern to public broadcasters, and the Supreme Court didn’t address that, said Marilyn Lawrence, KCSM general manager. “Our job is to tell stories, whether local or national, to help people understand things differently.” If a story is told in a way that may be offensive to others, “how do you determine if it’s offensive to your community?” she asked. Lawrence said the issue of fleeting expletives doesn’t affect KCSM because the station doesn’t air many live broadcasts.
Thursday’s ruling didn’t provide any guidance on the 9th U.S. Circuit Court of Appeals decision this year that deemed the FCC’s ban on political ads on noncommercial stations unconstitutional (CD April 13 p2), said Gray. Both cases are centered on the “constitutionality under the First Amendment with the government establishing rules on the content of broadcasts,” he said: There was some expectation that if the Supreme Court decided that the FCC’s handling of the Fox case was unconstitutional, “there might be some guidance that would affect the appeal with the 9th Circuit decision."
Others in the public broadcasting community said they will keep an eye on how the FCC will act. The Association of Public Television Stations said it’s pleased to have a final decision on the case. But the commission “will now have to decide if it will enforce the indecency and obscenity rules as it did prior to the Fox and ABC cases or if it will develop new standards through a procedural process,” said Lonna Thompson, general counsel. American Public Media is reviewing the decision and its possible implications for broadcasters, a spokeswoman said. However, “we are not planning to change our existing internal policies on obscene language,” she said.
PBS filed an amicus brief with the Supreme Court last year, expressing its concern about the difficulties in interpreting the FCC indecency rules (http://xrl.us/bncm4b). The organization commended the court for recognizing the inconsistent nature of the indecency rules, PBS said in a statement. “However, the narrowness of the Court’s ruling leaves open questions about how the Commission will apply the rules moving forward.”