The most important broadcast decency case in a generation is due to be decided any day now by a federal appeals court in New York. I wrote an article about the case, called “Bleep Deprivation,” which is available on page 53 of the current (“March 19, 2007”) issue of Fortune magazine (the one with “America’s Most Admired Companies” on the cover). Alternatively, you can also see it by going to page 53 of Fortune‘s free (and pretty neat) digital edition, which is available here.
The last time the U.S. Supreme Court reviewed the power of the FCC to punish “indecency” on broadcast TV was a generation ago, in the landmark 1978 case known as FCC v. Pacifica Foundation. The Court was then ruling on whether the FCC was empowered (consistent with First Amendment free-speech guarantees) to punish a New York radio station for having broadcast an expletive-studded George Carlin skit at two in the afternoon. (It was his 1973 “Filthy Words” skit, which was an expanded version of his 1972 monologue, “Seven Words You Can Never Say on Television.” You can read the skit in question if you click on the Court’s Pacifica ruling here, and scroll to the Appendix at the end of Justice Stevens’s opinion.) The Court ultimately decided, by a bare 5-4 vote, that the FCC could punish the radio station, but the precise meaning of the ruling was always confusing, since no opinion won support from a majority of the justices.
Perhaps because of the narrowness and opacity of the ruling, the FCC had invoked its power to punish dirty words sparingly thereafter — until March 2004. Then, after a series of incidents in which celebrities like Cher, Bono, and Nicole Richie used expletives on live award shows, topped off by the February 2004 Wardrobe Malfunction incident during the half-time of Super Bowl XXXVIII, the FCC adopted a tougher stance. Its crackdown prompted the case that was argued before the U.S. Court of Appeals for the Second Circuit last December — involving the Cher and Richie incidents — which has raised the question of whether Pacifica is even still good law. (A lot has changed since then, including social mores, the composition of the Court, and technology.)
If you do look at the story, let me know how you think the Court should rule.
