The Artful Jurist

Every so often our highest court finds itself wrestling with that recurring legal hot potato -- censoring out the naughty bits and words from broadcast television.  Just when you think they've got it all nailed down, the issue pops up all over again.  And the thing that makes it a tough issue to pin down in terms of societal standards is that society's standards keep changing; not to mention the technology involved.

Case in point: FCC v. Fox Television Stations.  The U.S. Supreme Court heard oral arguments on this case on January 10th.  At the heart of the case is whether the Federal Communications Commission is within a constitutional privilege to clamp down on, and/or fine, broadcasters who present nudity or profanity on freely transmitted broadcast TV stations (as opposed to the stations that are available only on cable).

The issue was prompted by an incident last decade in which a woman's bare buttocks was shown on the program NYPD Blue, and also where some music artists apparently just didn't see the big f***ing deal about expressing themselves in four-letter words on broadcasts of the Billboard Music Awards.

We could debate the sadness of watching multi-millionaire celebrities who seemingly don't feel any need to exercise a level of dignity when they're appearing on national broadcasts.  But the legal issue here is one that involves First Amendment free speech and protection of minors in an era when children in the vast majority of American households are never more than a click away from accessing the cable channels that aren't restricted by FCC indecency rules.

As Justice Samuel Alito put it, TVs that receive programming strictly by way of an antenna are quickly going the way of the old 8-track tapes.  So the question is whether the FCC indecency rules are really accomplishing anything.

The High Court is expected to rule on the case by this summer.  Cornell University Law School has a case brief online.