High court weighs constitutionality of broadcast regulation

The U.S. Supreme Court weighed arguments Tuesday in a case that challenges the federal government's policy of regulating broadcast indecency, but has the potential to drastically change how the media industry is regulated.

At issue in FCC v. Fox is the Federal Communications Commission's indecency policy, which broadcast television networks claim provides no guidance as to what material is indecent — making it unclear what is subject to fines and what is not.

The television networks claim the policy is unconstitutionally vague, which legally means that reasonable people could interpret the same language differently — an argument that Supreme Court Justice Elena Kagan seemed to find persuasive.

The FCC's regulation policy "gives [the agency] complete discretion as to what kind of speech to go after and what not to go after; that it has not tied itself in any way to any kinds of standards,” Justice Kagan said Tuesday. “There's a lot of room here for FCC enforcement on the basis of what speech they think is kind of nice and proper and good. And so that's a serious First Amendment issue.”

Justice Ruth Bader Ginsburg expressed a similar sentiment, noting that the FCC's indecency policy is marked by an “appearance of arbitrariness."

Seth Waxman, a lawyer for the ABC network and its affiliates, cited an example of such arbitrariness: a seven-second clip portraying nudity on the TV show “NYPD Blue” was deemed indecent, while a 40-second clip portraying nudity in the movie “Catch-22” was not.

The case also questions the relevance of a 1978 U.S. Supreme Court case that has provided the 30-plus-year rationale for regulating the broadcast industry differently than other media. In FCC v. Pacifica Foundation, the Court used broadcast’s hallmarks of pervasiveness and accessibility to children to justify limiting First Amendment protection for speech spoken over the public airwaves. That is, the differences in characteristics of broadcast and other media have warranted different regulation practices, which has led to restrictions on broadcast speech that would likely be struck down if applied to other media, such as print, cable television or the Internet.

However, with today’s diversity in communication, broadcast networks argue that the rationale for Pacifica is now irrelevant, and material presented in broadcast should be entitled to the same First Amendment protection as other forms of media. In the oral arguments, Carter G. Phillips, the lawyer for Fox Television Stations and its affiliates, said that the different standard for broadcast should not be applied today, since cable television and other media have largely become as pervasive as broadcast, making indecency equally accessible to children.

Donald B. Verrilli Jr., the government lawyer who represented the FCC at oral arguments, disagreed. Verrilli pointed out that broadcast is in a different position than other media because it receives its licensing from the government and uses free public airwaves, which grants it an enforceable public obligation. This obligation is to create a safe haven for children where they do not have to see or hear indecent material.

At least one justice questioned the rationale for varying levels of protection among different media given today's modern technological advances, such as cable television and the Internet.

Justice Anthony Kennedy asked Verrilli to explain "the public value in having different segments of the media governed by different standards" under the First Amendment.

The Court is expected to issue its decision by June.