Tuesday, July 13, 2010

Legal Commentary IV: FCC Case

I read this aloud to my roommate, and he turned his head and said, "So... boobs and fucking on TV?"

No, Joel, no boobs or fucking on TV. The Supreme Court visited the issue in 2009, ruling that banning fleeting expletives was constitutionally supported. But this time, the 2nd Circuit court appears to have taken issue with the vagueness of the law, stating that it was "unconstitutionally vague, creating a chilling effect."

The court's makeup will have changed somewhat since the last time they heard the case (if, of course, they decide to hear it -- they probably will, seeing as it overturns their previous ruling and they are the higher court).

Also note that there has been a slight shift in the cultural norm since 2009. The case then centered around Bono describing his Golden Globe as "Fucking brilliant." This was considered indecent. Compare that to 2010, where President Barack Obama said "It's a big fucking meal" at the Press Correspondent's Dinner (it was bleeped), and said that he consults experts "So I know who's ass to kick." When Joe Biden first made his "big fucking deal" gaffe, people talked about inappropriate use of expletive, but by the time Obama had said it, there were few waves in the water.

There's an argument to be made that the FCC's standard of "indecency" is falling out of sync with the country's. They need to have clear guidelines, and I think they need in particular to be able to demonstrate that each point of those clear guidelines has a compelling interest in censoring. For instance, if you say the n word, particular in a hateful context, there's a much more compelling interest in censoring it than, for instance, broadcasting sex while blurring out the woman's nipples.

If the FCC is forced not only to issue standards, but to have to justify those standards, we can have a much more honest approach to the issue of broadcasting.

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