Wednesday, November 05, 2008

Fleeting Expletives

Somewhere in heaven, George Carlin is laughing his head off. Yesterday's oral argument in the "fleeting expletives" case---posing the question whether the FCC has the authority to fine broadcasters for unscheduled statements of the word "fuck" and "shit" by celebrities (and presumably others)---was insufficiently decisive to enable me to predict the outcome. Although the case is officially only about whether the FCC acted within its statutory authority, as Justice Ginsburg noted, the First Amendment is "the big elephant in the room" that no one is talking about.

They should be. The rationale for content-regulation of broadcast television and radio has long been the scarcity of electromagnetic spectrum: Government must divvy up the airwaves among broadcasters and so, the scarcity rationale goes, it can insist on their use in the public interest, which includes restrictions on profanity. The rationale was dubious when announced and has become laughable with the proliferation of cable, satellite, and internet alternatives to broadcast tv, all of which fall outside of the FCC's regulatory reach.

The SG said during the argument that "Broadcast TV is the one place where Americans can turn on the TV at 8 o'clock and . . . not expect to be bombarded with indecent language," but this is plainly false. With or without parental controls, the tv can be tuned to the Disney Channel or a DVD of Cinderella can be played at 8, without any fear that Dopey will drop the F bomb. Thurgood Marshall once wrote, with respect to print, that "the level of discourse reaching a mailbox simply cannot be limited to that which would be suitable for a sandbox." There is no longer, if there ever was, a rationale for failing to apply this principle to broadcast tv.

Posted by Mike the Lawyer