America, F**k Yeah! Supreme Court Axes FCC's TV Obscenity Rules
June 21, 2012 1:38 PM
TV broadcasters are now free to curse and include nudity
U.S. Federal Communications Commission
and its enforcement of anti-obscenity laws have long been a thorny
irritation to colorful media figures
like Detroit rapper Eminem who famously sang, "So the F-C-C won't let me be. Or let me be me so let me see. They tried to shut me down on M-T-V. But it feels so empty without me."
Today the U.S. Supreme Court released a ruling that significantly scales back the FCC's
authority. In the case Federal Communications Commission, et al. v. Fox Television Stations, Inc., et al. the highest court in the land refused to assess the constitutionality of U.S. federal law that prohibits broadcasted obscenities. However, it did deal FCC efforts a blow by finding it illegal for the FCC to fine TV broadcaster who air obscenity or nudity during daytime hours.
A couple of points of clarification. The ruling does not scrap wholesale the obscenity laws, merely state that they need to be clearly defined in non-arbitrary language by the FCC. Thus, it does
scrap the laws for now, but may not long term. That said, it does leave the door open to future review.
The court did not overturn the Appeals court's ruling that the law was unconstitutional, hence for now the law can indeed be considered unconstitutional and uneforceable from a second front -- the Appeals decision,
the Supreme Court agrees to rule on Constitutionality.
Lastly, the ruling applies equally to all television broadcasters, and several other broadcasters like ABC had joined Fox in the lawsuit defense. In other words, Fox did not get "preferential treatment".
I. FCC's Obscenity Censorship is as Old as Broadcast Television Itself
The ban on TV profanity is virtually as old as broadcast television itself. The first line-based broadcast television tests were carried out in 1933. Just a year later Congress passed the
Communications Act of 1934
that formed the FCC, the agency tasked with governing radio and the emerging TV format.
The Communications Act contained provisions banning obscene content from being broadcast.
Profanity has been banned from daytime broadcast television since its introduction
[Image Source: unknown]
In the post-World War II era, television became a ubiquitous element of society and the ban on obscenity was inserted into the U.S. Criminal code. Specifically,
Title 18 of the United States Code, Section 1464
, prohibits the utterance of "any obscene, indecent or profane language by means of radio communication."
Violations carried stiff penalties -- from the code: "Whoever utters any obscene, indecent, or profane language by means of radio communication shall be fined not more than $10,000 or imprisoned not more than two years, or both."
The FCC, tasked with enforcement of the law, ruled that between 6 a.m. and 10 p.m. all obscene content was out-of-bounds. Between 10 p.m. and 6 a.m., there was a so-called "safe harbor" rule that allowed the broadcast of profanity and sexualized content, but certain words like the F-word in certain contexts or explicit depictions of sex remained prohibited even during this special time.
II. Public Support for Rules Wanes
But as society traded their suits and ties for jeans and a t-shirt, public sentiments about the obscenity ban shifted. Many became critical of the prohibition. After all, didn't the First Amendment
Congress shall make no law ... abridging the freedom of speech, or of the press
Couldn't obscenity be considered "free speech"?
And then there was the issue of inconsistent enforcement. As cable television became popular in the 1980s and 1990s, the FCC relaxed rules on sex and swearing on cable, under the notion that sensitive individuals like minors whom the law was designed to protect wouldn't have access to the paid content. Likewise, internet TV and/or radio content in the 1990s and 2000s has been minimally policed by the FCC.
Amid this uncertainty network television began to probe the limits of what qualified as "obscene" with the so-called "fleeting obscenity" -- occasional spontaneous outburst of a curse word or two from TV hosts or commentators.
Fox pressed the issue with a pair of
Music Awards broadcasts. In 2002 Cher addressed her critics by exclaiming during the broadcast "fuck 'em", and the next year Nicole Richie during her presentation about her TV show
The Simple Life
remarked, "Why do they even call it
The Simple Life
? Have you ever tried to get cow shit out of a Prada purse? It's not so fucking simple."
The FCC did not react sympathetically to broadcasters testing the limits with spontaneity. In 2004 it released strict guidelines forbidding fleeting obscenity and sued Fox for the curse words it broadcast.
The case languished in the courts for a half decade before finally coming before the Supreme Court in 2009. At the time the Supreme Court ruled narrowly in the FCC's favor (5-4), but it refused to rule on the Constitutionality of the case.
III. Round 2 at the Supreme Court
That led the case to continue to crawl through the federal court system with the
Second Circuit Court of Appeals
in New York City unanimously finding that the FCC rules violated First Amendment protections to free speech. In the unanimous ruling
Judge Rosemary S. Pooler
By prohibiting all 'patently offensive' references to sex, sexual organs, and excretion without giving adequate guidance as to what 'patently offensive' means, the FCC effectively chills speech, because broadcasters have no way of knowing what the FCC will find offensive. To place any discussion of these vast topics at the broadcaster’s peril has the effect of promoting wide self-censorship of valuable material which should be completely protected under the First Amendment.
Round 2 in the censorship case just wrapped up. [Image Source: AP]
But the case was not over. The Appeals court ruling meant that the case was yet again lofted to the Supreme Court. That second hearing finally reached
[PDF] this week, and the result was a reversal of the 2009 decision. Ironically, the Supreme Court opted to yet again to refuse to rule on Constitutionality of the obscenity ban, meaning that the case may yet again be headed to more appeals. Alternatively, similar cases may crawl up the court ladder and be heard by the Supreme Court in the future, who will likely eventually have to make up its mind regarding Constitutionality.
But for now TV broadcasters are free to beginning offering up profanities and nudity in their broadcast, which may make for saucier programming from fictional cop (melo)dramas to reality TV.
The reversal brings broadcast TV in line with the privileges enjoyed by its internet and cable television peers. One final important note: sorry Eminem, radio broadcasters are still forbidden from airing profane commentary or songs -- the last surviving bastion of FCC censorship.
The Supreme Court [PDF]
2nd Circuit Court of Appeals [PDF]
"This is about the Internet. Everything on the Internet is encrypted. This is not a BlackBerry-only issue. If they can't deal with the Internet, they should shut it off." -- RIM co-CEO Michael Lazaridis
UPDATE: Apple's App Police Ban Pulitzer Prize Winning Cartoonist for Being Satirical
April 19, 2010, 8:55 AM
Apple Gives In, Agrees Not to Censor NIN App's Profanity
May 8, 2009, 9:38 AM
Google plans ultra-fast wireless Internet for Research Triangle Park, N.C.
August 12, 2016, 6:30 AM
Twitter Senior VP: "Diversity is Important, But We Can’t Lower the Bar"
November 9, 2015, 9:59 AM
CNN Resorts to Internet Censorship to Promote Clinton Over Senator Sanders
October 15, 2015, 2:47 PM
Breaking Bad: How to Crash Google's Chrome Browser With Just 8 Characters
September 23, 2015, 11:08 AM
Quick Note: Amazon UK Offers £10 Back on Any Order £50 or Over
August 3, 2015, 12:05 PM
Editorial: Reddit Allows Itself to be Hijacked as a Hate Platform For Racist Bigots
July 21, 2015, 6:32 PM
Most Popular Articles
Car Insurance - The Hidden Discriminatory Practise
October 18, 2016, 5:00 AM
Is Razer Blade Stealth Laptop For You?
October 16, 2016, 5:00 AM
Cyber Hackers Threaten Security of Lifesaving Medical Devices
October 19, 2016, 8:09 AM
Excellent Wi-Fi Camera - Panasonic Lumix DMC-FZ300K
October 18, 2016, 5:00 AM
Problems with Windows 10 – Update Now
October 15, 2016, 7:30 AM
Latest Blog Posts
MacBoo Pro 2016: Release date Oct. 27
Oct 24, 2016, 7:16 AM
Mac Users, Try this if Your Mac is Infected?
Oct 23, 2016, 7:00 AM
Tips to Prevent Smartphones From Overheating:
Oct 22, 2016, 5:00 AM
Nasa Flies Drones at Nevada Airport
Oct 21, 2016, 8:21 AM
T-Mobile Data Problems
Oct 20, 2016, 10:17 AM
Annoying Apple Watch Problems and How to Fix Them
Oct 20, 2016, 5:00 AM
Your Mail May Soon Be Delivered By Robot
Oct 19, 2016, 9:34 AM
2018 Jeep Wrangler Prototype Sells At Junkyard
Oct 18, 2016, 5:00 AM
Samsung Shines with Gold Edition Tablet
Oct 17, 2016, 9:24 AM
Tesla Hints Mysterious Product Debut for October 17th
Oct 16, 2016, 10:14 AM
Samsung Galaxy Note 7 Phones on US flights
Oct 15, 2016, 5:00 AM
Comcast Fined $2.3 Million For Unconfirmed Services Charged To Customers
Oct 14, 2016, 5:00 AM
“American singer / songwriter “Bob Dylan is awarded 2016 Nobel Prize in Literature.
Oct 13, 2016, 10:33 AM
Battery Defect in Medical Device
Oct 12, 2016, 5:00 AM
IBM Bolsters Social Services Sector With Technology Grants
Oct 11, 2016, 5:00 AM
Scientists Sound Alarm on Climate but US Still Toys With Skepticism
Oct 10, 2016, 5:00 AM
IMEX America Trade Show
Oct 9, 2016, 10:00 AM
Phone Wars – Google VS Samsung Free Gifts on Purchase
Oct 6, 2016, 5:00 AM
More Blog Posts
Copyright 2016 DailyTech LLC. -
Terms, Conditions & Privacy Information