It is not the best of times for the council. The PTC’s staff is half what it once was because of a decline in funding, which Winter said is a fate shared by most nonprofits. Courts are reversing the actions that the council had encouraged the FCC to take.
The PTC’s ability to generate complaints to the FCC, even from those who never saw the allegedly offensive content, has made it the scourge of networks and producers.
In a friend-of-the-court brief filed with the Supreme Court, former FCC officials said that because of the PTC and other family groups, the agency launched a “Victorian crusade” in the past decade that went far beyond what either the agency or the Supreme Court anticipated in the Pacifica case.
“The commission’s complaints policy has become so artificial that it naturally prompts the question, why does the Commission not simply turn the monitoring function over to the Parents Television Council?” wrote the officials, who include former chairmen Mark Fowler and Newton Minow. “The answer is simple: it already has.”
Policing role
The cases before the Supreme Court concern the FCC’s role in policing the airwaves for material that describes or depicts “sexual or excretory organs or activities” and is “patently offensive as measured by contemporary community standards for the broadcast medium.”
After Fox broadcast award shows in which Cher told her critics “F--- ’ em” and Nicole Richie referred to “cow s---” and uttered a variation of the f-word, the FCC announced in 2004 that it was changing its policy so that even one-time utterances of profanity could be penalized.
The Supreme Court ruled 5 to 4 in 2009 that the agency was within its rights as a matter of administrative law to change its policy to protect the public against what Justice Antonin Scalia called “foul-mouthed glitteratae from Hollywood.”
But justices sent the case back to the U.S. Court of Appeals for the 2nd Circuit in New York to determine whether there were constitutional problems with the agency’s actions.
That court agreed that there were. It said the agency’s context-heavy determinations about indecency mean that broadcasters “are left to guess” when profanity and nudity might be deemed appropriate or punishable.
For example, the FCC allowed the profanity in an ABC broadcast of the movie “Saving Private Ryan” but disallowed some of the same words in a PBS documentary on blues singers.
So the Fox profanity cases are back at the Supreme Court, along with ABC’s challenge of an FCC decision that a seven-second camera pan of an actress’s bare buttocks in a 2003 episode of “NYPD Blue” violated the indecency standards. That resulted in a $1.2 million fine for 40 ABC affiliates that aired the show (including a Texas station owned by a subsidiary of The Washington Post Co.).
The court’s deliberations this time will focus on whether the FCC’s indecency regulations violate the First Amendment and the Fifth Amendment’s guarantee of due process.
In the 2009 case, Justice Clarence Thomas voted with the majority but said the court should reexamine the Pacifica decision. “Traditional broadcast television and radio are no longer the ‘uniquely pervasive’ media forms they once were,” he wrote.
And Justice Ruth Bader Ginsburg, in dissent, said that when the court considers constitutional questions, “we should be mindful that words unpalatable to some may be commonplace for others.”
In their briefs, the networks say worries about what they will show if the FCC’s regulations are struck down are overblown. They are free to show whatever they want after 10 p.m., and it is not comparable with what is on cable, they say.
Winter said the networks “know they would not win in the court of public opinion,” but he is not as confident about the high court.
“The amount of content that used to be considered too much for broadcast is now ubiquitous,” he said. “They are editing into shows the harshest profanities with bleeps. What will happen is that those bleeps will go away.”
The cases are FCC v. Fox Television Stations and FCC v. ABC.
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