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Today in the Community: January 11, 2012

The enforcement of obscenity regulations is arguably paradoxical given that policies must be sufficiently comprehensive to explicate what is prohibited, but not over-inclusive in the abstract so as to chill speech. With this in mind, today in our discussion of FCC v. Fox we consider whether the FCC’s generic policy against “indecency” is too vague.

Lyle recapped the oral argument here.

Some great comments from yesterday follow the jump.

Ruthann Robson – 1 Promoted Comment

The protection of children of course has a long history in indecency in general. One interchange in the oral argument that was interesting does relate to the “regulated media” aspect:
JUSTICE GINSBURG: You are saying that the standard can still be symbolic, as Justice Scalia said. We want the King’s English — for the very children we’re talking about when they go on the street, when they — their big brother says something to them, it is — the words that were, the expletives, are in common parlance today. I mean, it is — I think that children — the children are not going to be shocked by
them the way they might have been a generation ago.

GENERAL VERRILLI: Justice Ginsburg,
something this Court said in its prior decision is right on the mark with respect to this issue, which is it’s a question of whether it’s portrayed as appropriate. And when it is — it’s one thing when your 13-year-old brother is saying it to you or some bully in the schoolyard’s saying it to you.
It’s another when it’s presented to you in this medium as an appropriate means of communication.

Yet as to the “buttocks,” this distinction may founder given the friezes in the courtroom, as I discuss here:


Bradley Smith – 3 Promoted Comments

The problem with a policy such as the one currently in place is that, while it may aim to protect children, it rarely achieves that in practice. To take a realistic approach to this, “fleeting” indecency occurs almost constantly around children – at school, at the bus stop, at the supermarket. It seems to me a safe bet that the typical conversation on a middle school or high school bus would send the FCC into a conniption fit were it to be aired on TV.

Another example is the internet. The plethora of obscene material that can be found with a few words and a search engine is borderline terrifying, and the things that are heard in online games is even worse. None of these things are censored, and children of all ages are playing games like Call of Duty, or updating their facebook pages and surfing the internet after school.

The “fleeting” indecency policy seems like it has some use, but it could use some refining. Censoring the “s-word” and the “f-word” seems borderline pointless, for all of the reasons I’ve addressed above.

Sexual and violent images are a different story. I understand and sympathize with people who want to be able to turn on the TV and not worry about being bombarded with pornographic images. However, I do not think that protecting children needs to be the justification for this, when plenty of other, stronger arguments pertaining to obscene material exist.

There seem to be two major differences between Brown and this case: In Brown, there is active participation in the violence/sex, and in watching TV the viewer is in a passive role; and the other being that in playing a video game one self-selects to participate, while in watching TV one is at the whim of the station owner(s).

The first argument was thrown out by the Court in Brown, where the majority opinion stated that there is no proof that participation in simulated violence has any more of an effect on a person than watching violent movies. However, the second argument seems to have merit. Buying a video game or conducting a Google search is inherently different from channel surfing on the television. In the former category, one is very rarely caught by surprise by the content. If I go to a store and buy Halo, it is rather obvious that it will be violent. TV does not have this same degree of user selection, outside of a select few channels. With this in mind, some degree of censorship seems merited. However, as mentioned above, the current scope of that censorship merits reform.


Marjorie Heins – 1 Promoted Comment

FCC v. Pacifica (1978) allowed FCC censorship of “indecency” on the airwaves based on the belief that broadcasting was uniquely pervasive and uniquely accessible to children. Obviously, with cable and the Internet, neither assumption holds true today, and there is little constitutional justification for treating broadcast differently from other media – if there ever was. This doesn’t mean, however, that structural regulation of broadcast (or other media) is not justified, in the interests of economic equality and diversity. It is content-based censorship that offends the First Amendment, especially when the FCC’s standards for censorship – its definition of “indecency” and its arbitrary and inconsistent rulings – are as vague and subjective as the Second Circuit found them to be.


Matthew Holohan – 1 Promoted Comment

The Supreme Court has allowed stricter content restrictions on broadcast media, despite the fact that at least some of the regulated speech is otherwise protected by the First Amendment. The rationale for this principle, as articulated in the Pacifica decision, has rested on the idea that “broadcast media have established a uniquely pervasive presence in the lives of all Americans,” as well as the fact that “broadcasting is uniquely accessible to children.”

This rationale was significantly eroded by the rise of cable and satellite television and radio services, which fell largely beyond the scope of government indecency regulations because they did not rely on publicly-licensed broadcast frequencies. Now, with the ubquity of even more forms of electronic media – namely Internet, cellular network, and other data-networked delivery systems – the rationale underlying limited protection for broadcasters can no longer be supported. The broadcast media are no more pervasive or accessible to children than other forms of electronic media. Broadcast regulation places undue burdens on a limited class of content providers with little effect on the accessibility of objectionable content. Pacifica should be overruled and the FCC should be stripped of its authority to regulate broadcast content.

Recommended Citation: Kali Borkoski, Today in the Community: January 11, 2012, SCOTUSblog (Jan. 11, 2012, 5:54 PM),