Four Major Television Networks Challenge the FCC's Regulation of Indecency: Why Modern Technology Has Made This Always-Dicey Area of Law Obsolete

Earlier this month, the four major broadcast television networks - CBS, ABC, NBC, and Fox - went to federal court to challenge several FCC rulings deeming "bad words" that had been broadcast to be "indecent."

The challenge occurred in the wake of a whopping $3.6 million fine that the FCC levied in March. The fine fell on 111 television stations that, in 2004, had broadcast an episode of CBS' hit show "Without a Trace" that depicted an orgy involving teens.

The networks' goal is ambitious: They seek not only to get reversals of the indecency rulings, but also to convince federal appeals courts in Washington and New York - and then, ideally, the Supreme Court - to junk, or at least severely limit, the FCC's power to regulate material it deems indecent.

In this column, I'll explain why indecency law has always been on extremely tenuous ground, from a constitutional perspective. I'll also explain why - thanks to modern technology -- the Supreme Court might finally take the networks up on their invitation to make indecency law a historical relic, in order to make way for a more robust information age.

Indecency Versus Obscenity: The Different Forms of Regulation and Punishment

In a previous column, I explained why obscenity law is vulnerable, from a constitutional law perspective. In a sense, indecency law is now even more vulnerable.

Granted, the penalties for obscenity can be far harsher: Distribution of obscenity can result in jail time. But the penalties for indecency are also very significant, from a First Amendment context: Enormous fines, like the ones the FCC just recently levied with respect to the "Without a Trace" episode, strike at the heart of free speech.

These fines hurt networks' ability to produce (and stations' ability to show) the very kind of material that the First Amendment protects, by effectively cutting their overall budgets. (Granted, the money lost could be made up in an area other than content production, but, at a minimum, the fines do put content at risk.)

In addition, such fines also produce the kind of "chilling effect" First Amendment doctrine abhors. To avoid huge fines, networks and stations won't just toe the line that the "Without a Trace" fine suggests; they may steer well clear of it.

Finally, there is also the concern that fines--especially if they go unchallenged - will only beget more fines, as pro-censorship forces take courage from prior successes, and an FCC all too ready to act on their complaints.

Moreover, when it comes to obscenity laws, there are, at least, some fairly longstanding legal standards, set down by the Supreme Court. Though they are malleable, these standards at least give some minimal (though, in my view, insufficient) guidance. And, more importantly, they provide a strong defense: Under the test set forth in 1973, in Miller v. California, obscene material "must, taken as a whole, lack serious scientific, literary or artistic value."

Indecency law, in contrast, neither requires that the material be taken as a whole, nor exempts work with serious value.

The Recent FCC Fines and Actions: The "Without a Trace" Episode

The injustices that result from indecency law can easily be seen in the case of the recent FCC fines and actions.

First, let's look at the "Without a Trace" episode that triggered the staggering fines that may have played a role in the genesis of the networks' suit.

From the FCC's complaint, one might think "Without a Trace" is a softcore porn show. Instead, it is a show about an FBI unit's search for missing persons. Among its leads are three women who play strong, capable agents. It airs at 10:00 p.m. on the Coasts - hardly the children's hour (It does air at 9:00 p.m. Central, but that too is an hour when parents are very likely to be home to monitor children's television viewing.).

The particular episode at issue, "Our Sons and Daughters," made serious - and hardly what might pejoratively be called "liberal" - points. It communicated, for instance, how easily teens can lie to their parents; how teenage sex can mean participants risk getting STDs; and how watching porn can lead teens to experiment in ways that ultimately make them uncomfortable and remorseful.

The show's orgy scenario, moreover, was hardly fanciful: It has similarities, for instance, to a bombshell Frontline documentary, "The Lost Children of Rockdale County," which focused on a wealthy Georgia suburb in which a syphilis outbreak drew attention to a teen group-sex clique, as well as other issues.

But because we're in the realm of indecency law -- not obscenity law -- merit and value don't matter, nor does the larger context. Thus, this episode is a classic case of material deemed indecent by the FCC that's plainly not obscene.

The Recent FCC Fines and Actions: The "F-Word" and the "S-Word"

Second, let's look at the FCC actions the networks are directly challenging in their lawsuit - which concern "bad words."

So-called "obscenities" (not to be confused with obscene material) such as the so-called "f-word" and "s-word" are generally deemed obscene by the FCC regardless of context. (An interesting exception is the use of the word "fucking" by the rock-star Bono - a use that the FCC conceded was merely a superlative, as I discussed in a prior column.)

That means that, for example, the FCC is free to punish a network for, say, a discussion about the legality of the use of these words that occurs between adult characters, on a show preceded by a warning that it's meant for adult viewers. Indeed, the FCC is free to punish a show for an episode in which a character discusses how important, yet difficult, it is to set a good example and to teach her children not to use certain swear words - and then, after stubbing her toe, swears, thus illustrating her point.

Having to put certain words in a black box, ironically, forbids the stations even from broaching the idea that it's time to take them out of the black box. When certain words cannot be spoken, certain things cannot be said or expressed with the same intention - as the Supreme Court recognized in 1971, in Cohen v. California. There, the Court held that a draft protester has a First Amendment right to wear a jacket bearing the words "Fuck the Draft," in public - and even in a courthouse.

The majority opinion in Cohen recognized that "Fuck" was unique in its connotations, writing that language often "conveys not only ideas capable of relatively precise, detached explication, but otherwise inexpressible emotions as well. In fact, words are often chosen as much for their emotive as their cognitive force." (Justice Oliver Wendell Holmes was more pithy when he described a word as "the skin of a living thought.")

Precedents like Cohen, with its strong and unequivocal language, allow hope that the Supreme Court will revisit indecency doctrine - especially since, as I will explain in the next section, its rationale has been demolished by technology.

How the Advent of Modern Technology Destroys the Basis for Indecency Doctrine

From a First Amendment perspective, there simply can be no government-selected "bad words." Indecency law has provided a haven for censorship, but that haven may be crumbling.

Once, indecency law was based on the idea the airwaves were a scarce public resource, rationed out to qualified networks that were licensed by the FCC with the understanding that they were a "public trust": Avoiding "indecency" was the price of the privilege. (The same "scarcity" rationale was cited to support "balance" and "right-of-reply" requirements. Such requirements were upheld by the Supreme Court in Red Lion Broadcasting v. FCC in 1969 with respect to radio, but even the FCC ultimately abandoned the policy; and it was rejected by the Court in Miami Herald Publishing Co. v. Tornillo with respect to newspapers.)

But "scarcity" would be the last word one would use regarding media today - and increasingly, different media are competing across what once were clear boundaries. When we can buy television episodes to watch on our video iPods and rent them on DVDs, and when the suing networks must compete with viable (and uncensored) alternatives, it's very hard to argue that network television ought to be a special preserve with its own special rules - especially when those rules have always been deeply antithetical to First Amendment doctrine.

Will the Supreme Court Shut Down the FCC's Targeting of "Indecency"?

Is the Supreme Court up-to-date enough to acknowledge the reality of new media? There's some reason to hope: As early as 1997, the Court was surprisingly down with the Internet - in an opinion written by its oldest member, Justice John Paul Stevens, still vital, brilliant, independent-minded and sometimes maverick.

That year, in Reno v. ACLU, a seven-Justice majority invalidated (in large part) a federal statute, the Communications Decency Act - holding that in cyberspace, none of the rationales for traditional indecency law apply. (Doubtless, the presence of smart young law clerks helped close any generation gap that might otherwise have existed.)

Significantly, in Reno, the Court reiterated the First Amendment principle that censorship based on content is especially disfavored - and the FCC's censorship of the networks for indecency is plainly content-based.

The Court also emphasized in Reno that -- despite the reality that both adults and minors may have access to certain forums for speech (such as chatrooms) -- the government cannot constitutionally require that speech meant for an adult audience be watered down to that which is fit for children.

There's no question that shows like "Without a Trace" target an adult audience; while I believe all shows are entitled to First Amendment protection, shows slotted for 10 p.m. and geared toward an adult demographic ought to be the easy cases where First Amendment values are respected - not the flashpoints the FCC uses to terrorize stations and delight constituents by showing just how high its fines can go.

The only (and partial) dissenters in Reno were Chief Justice Rehnquist and Justice O'Connor - now, of course, replaced by Chief Justice Roberts and Justice Alito. Even if Roberts is a Rehnquist clone on such issues, that may not matter much. Moreover, as I discussed in an earlier column, Justice Alito may turn out to be a strong First Amendment proponent - stronger than was Justice O'Connor. (Indeed, O'Connor seemed open, in her Reno dissent, to the suggestion that Congress could engage in "zoning" adult content on the Internet, much as localities engage in the "zoning" of adult businesses in the real world.)

In short, the new Roberts Court may be more pro-free-speech than its predecessor. And that bodes well for the chances the Court might reconsider the current system -- under which the FCC uses timeworn excuses to cater to those who seek to use any pretext to justify censoring speech they dislike.