Posts from December 5, 2004

The First Amendment gets its day in court

The First Amendment gets its day in court

: Fox — bless ‘em — has decided to fight the FCC’s record fine against its Married by America, getting the first court test of the FCC’s censorship in more than 25 years.

Fox Broadcasting Co. is appealing a record-setting $1.18 million fine for airing racy fare on a show called “Married by America,” saying the government’s indecency rules for broadcast television are unconstitutional because they don’t apply to cable and satellite television.

Fox said the show was not indecent, and it argues that over-the-air broadcasters are now treated as “second-class citizens” by a Federal Communications Commission that unfairly holds them but not their rivals to decency standards.

If the FCC upholds the fine, Fox could take the case to court, creating the first test case against federal indecency standards in a quarter of a century, media lawyers said. The indecency rules are based on a Supreme Court ruling made in 1978 — well before the widespread use of cable and satellite radio and television, the Internet and technologies that allow parents to block objectionable material. Even some within the FCC have said that the rules are ripe for legal challenge.

“First and foremost, the commission’s indecency regulations no longer can withstand constitutional scrutiny,” Fox’s filing to the FCC reads. “Given the tremendous technological changes that have transformed the modern media environment, the commission simply cannot justify an intrusive, content-specific regulation of broadcasters.” …

If Congress attempted to extend broadcast indecency standards to cable and satellite, lawmakers would face several First Amendment obstacles, media lawyers say. If, on the other hand, Congress attempted to roll back decency standards on broadcast, they likely would face significant political pressure from parents groups and socially conservative organizations….

“Indeed, 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,” the Fox filing reads. “These technological and marketplace changes make clear that regulation of indecency, which the commission itself recognizes is constitutionally protected speech, cannot possibly survive strict scrutiny review.”

: Note, too, that the chill has hit political speech. I’ve used the example often that if a newsmaker says “F— Bush” on the air, he could be fined, under new legislation, $500,000. Here‘s the story of a radio commentator who used the F word in a political discussion and was fired because of fear of the FCC. Now, of course, the station could chose to fire him for using the word no matter what; that is its prerogative. But who knows whether he would have been fired before the Bono ruling. And in any case, the speech that was silenced was not sexual but was political. And the government had a role in silencing it. That is dangerous.

: Also, separately, here‘s a write-up of the Jake Tapper ABC World News Tonight piece on the Fox fine.

: UPDATE: I wonder whether the FCC would have the balls to reverse itself on Married by America — since that’s the first stop on this train — to block a court challenge.

Hi, neighbor

Hi, neighbor

: The New York Times New Jersey section has a feature by Jonathan Miller about a suburban blogger who happens to be me (it’s not online; The Times doesn’t put its ‘burban sections up). To my neighbors who happen by here as a result, welcome. You’ll find blatherings about media, politics, the FCC and Howard Stern, and whatever else happens by. Stay and chat awhile.

: UPDATE: Jonathan Miller just put up the text of the piece on his blog. Here it is.

Their tomorrow

Their tomorrow

: I went to Adam Penenberg‘s NYU media ethics class on Thursday (and, by coincidence, as I write this I’m watching Shattered Glass, featuring Adam and his good reporting). I enjoyed meeting these students because I believe they can and will have a greater impact on journalism than any class in my lifetime. They can reshape the relationship of news media to its public. They can be the first of a generation of young people since Hearst who can become media entrepreneurs. They can also help share lessons about standards of professionalism and tricks of the trade with citizens’ media. A we talked about ethics, libel, copyright, and such in relation to bloggers, I said they should share the lessons they’re learning — because the knowledge is fresh for them and, frankly, it’s stale for the likes of graying me — and a few students immediately started plotting putting up a wiki to do just that.

: On lighter notes… One student blogged afterwards about my blog triumphalism, always fair game. Another emailed the group that she thought she’d remembered me… from an episode of Moonlighting. And another student blogged this:

Today, in my Media Ethics class, taught by Adam Penenberg, we had a speaker named Jeff Jarvis. A friend of mine, after class, told me that she wanted him for her dad. He was cool.

OUCH! Pardon me while I take the icepick out of my graying temple.