Supreme Court may reconsider radio, TV indecency rules

Justices agree to hear "indecency" case after lower court says government censorship no longer makes sense in an era of the Internet, YouTube, and the V-chip.

Declan McCullagh
Declan McCullagh Former Senior Writer
Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.
3 min read


In 1978, when the U.S. Supreme Court gravely concluded that indecent radio and TV broadcasts were "uniquely pervasive" and "uniquely accessible to children," that was probably true.

Then again, that was before cable television, DirecTV, and satellite radio, and certainly long before the Internet finally became mainstream in the late 1990s. It was also long before TV ratings for broadcast programs--and decades before the kind of parental control technology found in the V-chip became implanted in all televisions and digital converter boxes sold in the United States.

Today the Supreme Court agreed to hear a case that will test whether the remarkable technological changes of the last 33 years have changed the way broadcast censorship should work.

In that seminal 1978 case that arose from comedian George Carlin's monologue, the justices ruled that Federal Communications Commission regulations banning four-letter words were appropriate because "the broadcast media have established a uniquely pervasive presence in the lives of all Americans." In addition, the opinion written by Justice Paul Stevens said, "broadcasting is uniquely accessible to children," because there's no way to block it.

Last year, however, a federal appeals court ruled that technological advances have ripped away the underpinnings of the FCC's "indecency" regulations and ruled against the government agency on First Amendment grounds.

The Second Circuit concluded in a 3-0 opinion (PDF) that:

We face a media landscape that would have been almost unrecognizable in 1978. Cable television was still in its infancy. The Internet was a project run out of the Department of Defense with several hundred users. Not only did YouTube, Facebook, and Twitter not exist, but their founders were either still in diapers or not yet conceived.

The past 30 years has seen an explosion of media sources, and broadcast television has become only one voice in the chorus. Cable television is almost as pervasive as broadcast--almost 87 percent of households subscribe to a cable or satellite service--and most viewers can alternate between broadcast and non-broadcast channels with a click of their remote control. The Internet, too, has become omnipresent, offering access to everything from viral videos to feature films and, yes, even broadcast television programs.

The current case arose from the FCC's decision to broaden its indecency regulations as part of then-chairman Kevin Martin's attempt to neutralize the political outcry over Janet Jackson's famous wardrobe malfunction during a Super Bowl halftime show in 2004.

Broadcasters including NBC, Fox, ABC, and CBS (the parent company of CNET) sued, saying the FCC regulations were so vague they violated the First Amendment.

For instance, the FCC allowed repeated indecent language in broadcasts of "Saving Private Ryan," but singled out for punishment one mention of the word "f**king" during the Golden Globe Awards. The word "bulls*it" is indecent, for instance, but the word "d**khead" is not because it's "not sufficiently vulgar, explicit, or graphic."

In an April 2011 brief (PDF) requesting that the Supreme Court hear the case, the Obama administration defended the FCC's decision by saying an episode of NYPD Blue that aired at 9 p.m. "pans down to a shot of her buttocks, lingers for a moment, and then pans up her back." The lower court decisions "preclude the (FCC) from effectively implementing statutory restrictions on broadcast indecency that the agency has enforced since its creation in 1934," the brief said.

This morning's order (PDF) from the Supreme Court agreeing to hear the case asks lawyers for both sides to address only this question: "Whether the Federal Communications Commission's current indecency-enforcement regime violates the First or Fifth Amendment to the United States Constitution." A decision is expected by next summer.