Opinion: Court trashes FCC's TV Obscenity Rules

Are we becoming too 'free' for our own good?

Court rules that the FCC's enforcement of its indecency rules will have a chilling effect on the rights of free speech on television.The ruling, according to some sources, could inherently give permission for guests on talk shows or any other live venues to use expletives and gross language without regard to the audience involved.

WASHINGTON, DC (Catholic Online) - The U.S. Court of Appeals for the Second District Court in New York ruled last week that the banning of fleeting expletives on television ran in contradiction to our guarantee of free speech.

The Court, at the conclusion of its opinion, struck down the FCC's indecency policy, citing that the policy failed constitutional scrutiny. From another perspective, the ruling begs the question - what do they mean by free?

The ruling came in response to a petition by mainstream media outlets CBS, ABC and Fox against the FCC concerning policies they were currently enforcing.

The petition was brought before the Court of Appeals by Fox, ABC and CBS and involved several instances of "fleeting expletives" on live TV. The networks had argued that the FCC went too far in issuing a 2006 decision against Fox Broadcasting for separate incidents in 2002 and 2003 after singer Cher and celebrity Nicole Richie each uttered an expletive on live television.

During the 2002 Billboard Music Awards, Cher said the "f-word" and the next year on the same program Nicole Richie used the "s-word" and "f-word." Both were broadcast on Fox.

The court stated, "We now hold that the FCC's policy violates the First Amendment because it is unconstitutionally vague, creating a chilling effect that goes far beyond the fleeting expletives at issue here. Thus, we grant the petition for review and vacate the FCC's order and the indecency policy underlying it."

If fining a network for allowing the broadcast of expletives produces a chilling effect, one wonders what the court is trying to warm up. The ruling, according to some sources, could inherently give permission for guests on talk shows or any other live venues to use expletives and gross language without regard to the audience involved.

Stations may also see less reason to edit expletives from taped programming for the same reason.

This new ruling brings into question the FCC's authority to oversee broadcast content with regard to profanity in general. Currently they are able to discipline and even penalize stations with regard to profanity and indecency "including language so grossly offensive to members of the public who actually hear it as to amount to a nuisance."

Michael J. Copps, one of five FCC commissioners, labeled the decision "anti-family" and called on the Commission to act soon.

"In light of the uncertainty created by today's decision," he said in a statement, "I call on this Commission to move forward immediately to clarify and strengthen its indecency framework to ensure that American parents can protect their children from the indecent and violent images that bombard us more and more each day. These parents -- millions of them -- are waiting."

Profane language and indecency, in general, are not allowed to be broadcast on radio or television between the hours of 6:00am and 10:00pm, when children are more likely to be present.

In addition, the U.S. Supreme Court has ruled that obscene material, by contrast, is not protected by the 1st Amendment to the Constitution and may not be broadcast on the public airwaves at any time.

As the high court will probably be asked to hear this case, their view on freedom of speech and the use of expletives will be a critical component in addressing the subject constitutionally.

Steven J. Heyman, a professor at Chicago-Kent College of Law and noted first amendment scholar makes the case that rights have to be mediated by social responsibility.

In the introduction to his book "Free Speech and Human Dignity," Professor Heyman states, "Rights represent what it means for people to be free in various areas of life-not only in relation to the external world, but also in their inner lives, in the social and political realm, and in 'the sphere of intellect and spirit.'

"On this view, freedom of speech must be exercised with due regard for the rights of other individuals and the community as a whole. Speech that infringes these rights should generally be regarded as wrongful and subject to regulation through narrowly drawn laws."

Heyman's view would sound very familiar to anyone familiar with Catholic social teaching. The dignity of the human person must always be considered with regard to rights of another.

In 1984 Joseph Cardinal Bernardin addressed the National Consultation on Obscenity, Pornography and Indecency in Cincinnati, OH. In his opening remarks, he said, "The theological foundation of our opposition to obscenity, pornography, and indecency is the dignity of the human person...

"Because we esteem human life as sacred, we have a duty to protect and foster it at all stages of development, from conception to death, and in all circumstances. Because we acknowledge that human life is also social, we must develop the kind of societal environment that protects and fosters its development."

The ruling of the Court of Appeals realistically brings about a violation on both fronts. Allowing a greater freedom for profanity ignores the continuing damage done to the humanity of the person who practices it.  In addition, the social side of the equation is even more significantly impacted with men, women and children whose dignity is violated as they are exposed.

Heyman's words speak right to the heart of the issue. " freedom of speech must be exercised with due regard for the rights of other individuals and the community as a whole." To do anything less is to disregard our standing within society.

Anyone who has listened to the radio and or watched television consistently over the past 20 to 30 years can affirm that we are consistently experiencing a much greater "freedom" already regarding cursing and vulgarity; vocabulary seems to grow more and more profane.

Will we see a greater frequency in the use of profanity based on the new ruling? This is anyone's guess. Higher courts will probably weigh in on this very volatile issue.

As Cardinal Bernadin stated, "Proceeding with great care and deliberation will help ensure an effective solution to the corruptive influences of obscenity, pornography, and indecency in our society. An uncritical approach runs the risk of grossly oversimplifying the problem and is inappropriate, given the importance of our primary concern: the worth and dignity of the human person."

The Court of Appeals is certainly guilty of gross oversimplification of the problem. In their enthusiasm to protect the right of the speaker, they lost sight of the audience.

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Randy Sly is the Associate Editor of Catholic Online and the CEO/Associate Publisher for the Northern Virginia Local Edition of Catholic Online (http://virginia.catholic.org). He is a former Archbishop of the Charismatic Episcopal Church who laid aside that ministry to enter into the full communion of the Catholic Church.

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