The First Amendment gets its day in court
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.