Fleeting Indecencies and Enduring Constitutional Doctrine

[Editor’s Note: This month, faculty members will discuss upcoming judicial decisions of particular interest. This is the first post in the series.]

On June 27, 2011, near the end of its October 2010 Term, the U.S. Supreme Court granted certiorari review in FCC v. Fox Television Stations, a case arising in 2010 out the Second Circuit Court of Appeals following a 2009 remand from the Supreme Court.

At issue, in this round of the litigation, is the FCC’s expansion of its broadcast prohibitions to include so-called “fleeting indecencies,” isolated (uncensored) utterances that “describe or depict sexual or excretory organs or activities” and, when used, are “patently offensive as measured by contemporary community standards for the broadcast medium.” Perhaps the most notorious fleeting indecency in recent years was Janet Jackson’s unfortunate “wardrobe malfunction,” precipitated by Justin Timberlake, during the halftime show of Super Bowl XXXVIII.

Among other things, the FCC’s revised policy, as described by the Second Circuit, “establish[ed] a ‘presumptive prohibition’ on the use of the F- and S-Words unless their use is ‘demonstrably essential to the nature of an artistic or educational work or essential to informing viewers on a matter of public importance,’ or the words are uttered in the course of a ‘bona fide news’ program.” Of course, the policy is not limited to these specific words—they are paradigmatic but not exclusive—and can include instances of nudity, sexual activity, or other words with the same cultural significance as the F- and S-words. More significantly, the FCC policy has been characterized as contextual, depending on the circumstances surrounding each utterance.

Concerns of vagueness and overbreadth naturally abound in the case, and such concerns often provide a judicially attractive way to analyze and invalidate laws without getting unduly entangled in the difficult line-drawing inherent in actually having to define the parameters and boundaries of constitutional protection. But judicial invalidations on the basis of vagueness, in particular, are often just means to delay an inevitable ruling on the merits, and in the case of the FCC indecency rules, the vagueness card has already been played. At some point, such diversionary measures may begin to appear transparent and even unsatisfactory.

At the doctrinal heart of the case (at least from the FCC’s perspective) is a traditional distinction between limited-airwave broadcast media (such as radio and at least earlier versions of television) and the not-so-limited-bandwidth media (such as the internet and its many outlets). According to the FCC’s brief on the merits, the Supreme Court “has long applied less demanding First Amendment scrutiny to regulation of broadcast speech than to regulation of other communications media. That established rule has historically been premised on the scarcity of available broadcast frequencies, the pervasive presence of broadcast media, and the unique accessibility of broadcast programming to children. Those characteristics of broadcasting remain true today.” Historical deference aside, however, each of these characteristics today does not have nearly the force that it possessed in decades past.

Much of the reason that these characteristics have lost persuasive force can be attributable to the final major variable, namely, technological change. With cable, satellite, and internet television and radio (which are generally not regulated by the FCC), it is difficult to speak of “the scarcity of available . . . frequencies.” Moreover, with the prevalence of alternative media devices, from smart phones to tablets, and the diminished role of traditional broadcast media, it is hard to suggest that these traditional media comparatively exhibit a distinctly “pervasive presence.” Lastly, given the content and availability of the internet, not just on PCs but on so many other devices, it is fanciful to speak of “the unique accessibility of broadcast programming to children,” especially when one considers the filtering capabilities built into modern televisions and other media devices and programs.

In the end, this is an important case precisely because it situates the Court at a decisive crossroads. Either the Court can maintain and perhaps try to rework the distinctions that were originally developed amid an era marked by a vastly different technological landscape (and arguably a different cultural milieu) or it can consider revamping its doctrine in a principled way that takes full account of these changes and also anticipates future developments. The latter course need not require the Court to overrule any of its prior decisions, as long as it acknowledges with candor the need to alter its doctrine and maintains fidelity to the deeper import or principles of those cases. Likewise, the latter course also need not lead inexorably to an invalidation of the FCC’s indecency rules, but it would require the Court to chart a new and imaginative course within this branch of the First Amendment.

The worst outcome, I believe, would be a ruling—whether upholding or invalidating the FCC rules—that purports to reach its holding entirely within the existing framework without acknowledging the limited utility of that framework, the vast technological and other changes that exert pressures on the framework’s ongoing viability, and the possibility that the extant framework may (or will) eventually become obsolete.

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