"The remarkable thing is that we don't know," said Garrett Epps, a former Washington Post reporter, who teaches constitutional law at the University of Baltimore.
"The FCC will undoubtedly get a complaint," Epps said. "There are people all over the country regularly monitoring the media just to complain. Then the FCC will determine if this was 'an authentic news broadcast' or not. The standards are difficult to understand. They [Fox] would probably be all right, but they have to guess. And this describes the chilling effect that all broadcast media is now feeling."
Epps points out that among the scenarios recently argued before the court was Bono's use of the F word in 2003 upon accepting a Golden Globe Award. A fine was threatened over that comment. However, when a Survivor player who had been voted off the island later called a fellow contestant a "bulls-ter" on The Early Show, that was deemed authentic news, with no fine. Go figure.
Epps is correct in believing that the FCC's evaluation process has become too subjective. The standards are unconstitutionally vague and outdated. And the often-heard opinion that government must either act or watch as broadcast television and terrestrial radio become Sodom and Gomorrah overlooks the role of free enterprise in maintaining those places where viewers and listeners will still be able to go and have their tastes satisfied.
Judging from the comments offered by the justices during oral argument, there seems little prospect of sweeping change. There have been many instances in recent years when the court has denied government efforts to limit speech, but radio and TV have been carved out as an exception.
The court upheld regulation in the landmark Pacifica case of 1978, concerning the daytime broadcast of George Carlin's seven dirty words. The court ruled that broadcasting was more available to children than other media and, therefore, subject to additional censorship. ("Uniquely pervasive presence in the lives of all Americans," was the justification offered by Justice John Paul Stevens.) The practical outcome was recognition of the government's ability to regulate nudity and offensive language between the hours of 6 a.m. and 10 p.m. (The Fox29 transmission of Nutter's comments in a 10 p.m. newscast would therefore receive additional protection.)
For more than 20 years, that standard seemed to work, as media outlets avoided the Carlin list, at least in the daytime. Things changed on the watch of President George W. Bush. Now, even "fleeting expletives," those unscripted moments such as Bono's slip at the Golden Globes, were deemed infractions. And as the policing became more subjective, the appeals grew more numerous, resulting in the recent court argument. Of concern to the justices seemed to be the idea that, in a world of violent video games, an unregulated Internet, widespread cable, and increased use of satellite radio, there needs to be an oasis.
"All we are asking for, what the government is asking for, is a few channels where you ... are not going to hear the S word, the F word, [children] are not going to see nudity," Chief Justice John G. Roberts Jr. posited during oral arguments. "There are 800 channels where they can go for that."
Tim Winter of the Parents Television Council echoed those sentiments in a USAToday op-ed: "Imagine what the TV and radio landscape would look like if the broadcast networks got their way. It would be virtually indistinguishable from HBO, Showtime, Cinemax, or worse. Eliminating the law entirely would allow broadcasters to pump nonstop profane language, disgusting scatological references, and sexual content, up to and including pornography, into virtually every living room in the country."
But Winter, like Roberts, overlooks the role of a free market. No doubt there are many in the nation who share their sensibilities, and they will provide a strong viewership and listening base for media outlets that provide wholesome entertainment.
On my nationally syndicated radio program, I have a seven-second "dump" button in my studio. I've needed it twice for myself and a handful of times for the thousands of calls I have entertained in more than 15 years of broadcasting. If the FCC were to end regulation of AM and FM radio tomorrow, I'd probably keep the button because of my own standard, not something forced upon me by government.
I agree there needs to be an island of decency. I just don't see any justification in the First Amendment that enables government to create it.
Contact Michael Smerconish
Read his columns at www.philly.com/smerconish.