By Brian Lynch

Janet Jackson’s relevance in pop culture has likely faded, but her 2004 Super Bowl performance has had a lasting impact on broadcasting.  That performance of course featured the infamous wardrobe malfunction in which Miss Jackson barred her breast on live television.  The incident resulted in more than 500,000 complaints to the Federal Communications Commission and led to the stepped up enforcement of the FCC’s policy against fleeting expletives and images.

On Tuesday the United States Supreme Court heard oral arguments concerning the enforcement of the policy in FCC v. Fox Television Stations, Inc.  The question before the Court: Whether the Federal Communications Commission’s current indecency-enforcement regime violates the First or Fifth Amendment to the United States Constitution.  More specifically, do the rules have a chilling effect on free speech and are rules unconstitutionally vague?

The commission’s power to restrict speech stems from the FCC v. Pacifica Foundation decision in 1978.  In Pacifica the Court ruled against the radio broadcast of George Carlin’s infamous seven filthy words comedy bit and gave the commission the power to restrict profane language from broadcast television and radio.  The reasoning behind the decision was to protect children from the intrusion of profanity into a home via radio and television.  The Court noted:

“Of all forms of communication, broadcasting has the most limited First Amendment protection. Among the reasons for specially treating indecent broadcasting is the uniquely pervasive presence that medium of expression occupies in the lives of our people. Broadcasts extend into the privacy of the home, and it is impossible completely to avoid those that are patently offensive. Broadcasting, moreover, is uniquely accessible to children.”

Does that reasoning still fly today? 

Technology has certainly changed the media landscape.  Broadcast networks are no longer king as cable and satellite television and the Internet have equaled or exceeded broadcast television’s pervasive presence in our lives.  Only about 10% of households do not subscribe to cable or satellite television and rely solely on over-the-air broadcast signals.  Additionally more viewers are relying on the internet to view broadcast TV shows.  The notion broadcast television is an intrusion into a home is no longer applicable.  People pay to have broadcast television content beamed directly to their big screen TV’s or laptops.  During Tuesday’s oral arguments, Justice Kagan questioned if viewers today could even distinguish between broadcast TV and cable TV networks.

Although broadcast TV is no longer uniquely pervasive, the potential exposure of questionable content to children is still possible.  Without regulation, would the networks become unwatchable “filth” to families?  Basic cable tells us no.  The cable networks regulate themselves and most do not allow profanity on air.  It is unlikely broadcast networks would change course.  The market dictates what content is acceptable to audiences and basic cable demonstrates profanity doesn’t sell to the masses. (Or maybe it does.  See The Sopranos).

One of the strongest arguments put forward by the television networks is the seemingly arbitrary way the policy is being enforced.  In one instance curse words broadcast during an airing of the movie Saving Private Ryan were deemed acceptable.  But the commission deemed profanity broadcast during a documentary by Martin Scorsese to be indecent.  See this previous Suffolk Media Law article examining the vagueness of the FCC policy.

Although the enforcement of the policy has been questionable, it does not mean the FCC doesn’t have the power to restrict indecent speech from broadcasts.  Could the Supreme Court find the policy too vague?  Probably.  But will it overturn Pacifica and give the networks free reign?  Probably not. 

Go here for a transcript of the oral arguments.