U.S. Court of Appeals says FCC indecency policy is vague because TV Networks have difficulty knowing when they can get away with airing vulgarity in the presence of children

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NEW YORK (7/14/10) – Yesterday, a U.S. Court of Appeals in Manhattan held that the FCC’s current “indecency policy” is unconstitutionally vague.  In so holding, however, the Court of Appeals did not also hold that the broadcast indecency law itself is unconstitutional; nor did the court hold that broadcasters have a right to utter at least one obscenity during every program.  The court also said, “We do not suggest that the FCC could not create a constitutional policy.”

MIM President Robert Peters had the following comments

Part of me sympathizes with the broadcast TV networks.   The FCC’s broadcast indecency enforcement “policy” is a mess because of federal court decisions, because enforcement policies change with changes in presidential administrations, and because the FCC Commissioners and FCC Enforcement Bureau don’t always see eye-to-eye when it comes to broadcast indecency.

I also think that both the public and broadcasters would benefit if the FCC did its homework (with input from the public and industry) and crafted a more coherent policy.

The truth of the matter is, of course, that a “more coherent policy” shouldn’t be needed.  In particular, when it comes to the well-being of children, broadcasters should know what is and isn’t appropriate and act accordingly.   If they don’t know, they shouldn’t be broadcasters.

As the FCC put it in a published document, The Public and Broadcasting: “In exchange for obtaining a valuable license to operate a broadcast station using the public airwaves, each radio and television licensee is required by law to operate its station in the ‘public interest…’”   [Available online at http://www.fcc.gov/mb/audio/decdoc/public_and_broadcasting.html]

It ought to go without saying that there are few if any communities, outside of perhaps New York and Los Angeles, where gratuitously uttering the “f—k” or “s—t” word or the “c—k s—r” words in front of children would be considered compliance with the public interest standard.

It should also be remembered that not too many decades ago, the TV networks had an industry-wide code with self-imposed standards that generally reflected community standards and that didn’t include a green light for “four-letter” words.  Back then, the networks knew better.

Not that they don’t know better now, but today they would rather play a cat and mouse game with the FCC , constantly pushing the envelope and then complaining that they don’t know whether the FCC will deem this or that transgression of community standards actionable.

Furthermore, even assuming that “community standards” for adults have sunk as low as the entertainment and news media would have us believe, only a moral imbecile would assume that five-year-olds and ten-year-olds, or even fifteen- year-olds, can handle the floodtide of vulgarity and other morally debilitating entertainment they are exposed to on TV.

I would add that when it comes to adults in the workplace, employers are responsible for knowing how much vulgarity or sexual banter is permissible.  While court decisions provide some guidance as to what constitutes sexual harassment, the guidance is far from crystal clear.

Author: Morality in Media   07/14/2010

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