BROADCASTERS HAVE have long been bound by government decency standards in exchange for the use of public airwaves. But for years, the Federal Communications Commission refrained from punishing the airing of the errant swear word, reserving its ire — and regulatory muscle — for instances where broadcasters flagrantly disregarded the standards and aired profanity or nudity between 6 a.m. and 10 p.m., when children were most likely to be watching.
Then came the 2003 Golden Globe Awards, during which U2 lead singer Bono let fly the F-word while accepting an award during the live NBC broadcast. The Bush-era FCC ruled in 2004 that this “fleeting expletive” deserved condemnation. Later that year, the agency blessed ABC’s broadcast of Steven Spielberg’s World War II epic, “Saving Private Ryan,” which abounds with curse words.
The Supreme Court heard oral arguments Tuesday in a case in which broadcasters and their allies rightly challenged the FCC’s indisputably confusing and arbitrary policies. (The Washington Post Co. owns broadcast stations that could be affected by any decision in this case.)
Viewers these days flip easily between uncensored and often provocative content on premium subscription channels and network programming bound by the government standards. The proliferation of these cable and satellite channels has irrevocably altered the TV landscape and, critics say, erased the legal and moral rationale for holding broadcast channels to a different standard. Some in the broadcast industry argue that the indecency standards amount to unconstitutional and discriminatory government censorship. We believe that this argument goes too far.
There is value in maintaining a safe harbor of relatively “clean” programming on the country’s broadcast stations. Although competition abounds and the number of households that rely on broadcast continues to dwindle, the networks remain enormous draws for the viewing public, no more so than during live sporting and entertainment events; these channels also carry indispensable local news. There is a legitimate policy debate to be had about whether the FCC should continue to monitor broadcasters for indecency violations, but this discussion is better left to the political and policy arenas and not to a court of law.
The justices, however, should strike down the current FCC indecency regime. The rules, as they were, are vague, leaving broadcasters to wonder — and worry — when they may be subject to FCC sanctions. “Fearing major fines as a result of live coverage of an event at which a passing expletive may be uttered or nudity fleetingly depicted, broadcasters are reluctantly choosing not to cover certain kinds of events or air certain types of stories or programs at all,” according to a brief filed by the National Association of Broadcasters and the Radio-Television Digital News Association. Returning to the old model that targeted deliberate and consistent scofflaws and protected good-faith broadcasters from a celebrity’s inappropriate and fleeting outburst could eliminate this chilling effect.