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Today in the Community: January 12, 2011

Today in the Community we continue our discussion of FCC v. Fox, which was argued on Tuesday. Our subtopic for today is whether – putting to the side the enormous amount of media attention that the case has received – the regulation of “fleeting indecency” is in fact an important First Amendment issue.

A great comment from yesterday follows the jump.

Christine Corcos – 1 Promoted Comment

From the FCC website: “The FCC has defined broadcast indecency as “language or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory organs or activities.” Indecent programming contains patently offensive sexual or excretory material that does not rise to the level of obscenity.” While this language might seem to be precise, in that it tracks the Miller test to some extent, indecency “doesn’t rise to the level of obscenity.” So, what is it? Since 2004, the FCC has classified words that are not even “in context” but taken literally describe “sexual or excretory material” as indecent (fleeting expletives) as indecent, thus making this definition both vague and unpredictable.
The FCC agrees that the First Amendment protects such language and material and thus they can be broadcast at a time when children are unlikely to be watching. But of course children might be watching. In this time of DVRs and YouTube, children might easily see such material anyway. Should the FCC be substituting its judgment for parental guidance?
In the case of profanity, the words need only be “so grossly offensive to members of the public who actually hear it as to amount to a nuisance.” How many members? Which members? What is grossly offensive? What is grossly offensive has changed over time for a number of us. Younger viewers may be more tolerant of language than older ones although this is not necessary true, people in certain sections of the country may be more tolerant of certain images than viewers in other sections of the country. Again, viewers can, given the technology we have today, make these decisions for themselves, particularly since many viewers receive broadcast tv via cable or satellite transmissions, and can make their opinions known using their remotes, calls to their cable or satellite providers, or to the sponsors of the shows. Many do so.

FCC Website:

Recommended Citation: Kali Borkoski, Today in the Community: January 12, 2011, SCOTUSblog (Jan. 12, 2012, 9:39 AM),