Prohibitions against profane and obscene language in television broadcasts will be at issue on November 4th when the U.S. Supreme Court reviews a legal challenge to the enforcement practices of the Federal Communications Commission (FCC).
The Parents Television Council (PTC) has filed an amicus brief in the case of FCC vs. Fox Television Stations asking the justices to reject a lower court ruling that concluded government enforcement standards have been "arbitrary and capricious."
Fox Broadcasting filed suit after the FCC reprimanded the network for allowing vulgarities to be aired during live broadcasts of music award shows in 2002 and 2003. One incident involved a singer used a four letter word to rebuke her critics.
In 1978 the Supreme Court did rule in favor of allowing the FCC to police radio and television broadcasts during time slots when children were most likely to be in the audience. FCC v. Pacific Foundation involved broadcasts of the late George Carlin's "seven dirty words" monologue.
The ruling from the New York Court of Appeals for the Second Circuit in New York that went against the FCC runs counter to 80 years of jurisprudence and warrants constitutional clarification from the high court PTC President Tim Winter has argued.
"The court has ruled in the past that indecency laws are constitutional and we want them enforced," he said in an interview. "We need court to set some clear goal posts that allows for a reasonable expectation on the part of families that they also have ownership over the airways and they won't be assaulted by an ever more coarsening culture."
ABC, CBS, and NBC have also filed briefs with the Supreme Court in defense of Fox's position. The networks maintain that "fleeting" expletives should not be subject to sanction. This concept does not sit will with the PTC because parents have a right to shield their children from offensive and distasteful remarks, even if the transmission is limited, Winter explained.
"This whole idea of fleeting profanity is a great marketing term that has been used by the television networks," he observed. "But everything is fleeting when it comes to any spoken word. The question is how many fleeting vulgarities are acceptable to parents and the answer is zero."
Contrary to what ABC, CBS and NBC have argued in their briefs, the broadcast medium remains a potent and pervasive force in society, Winter said. If the networks have suddenly lost faith in the power of public airwaves they should give up their broadcast licenses and allow the spectrum to be resold in the public interest, he continued.
"The public airwaves belong to all of the American people, and that includes those who have families and those that do not," he said. "The commonsense balance of allowing indecent content on the public airwaves after 10 p.m. provides a remedy for both."
Up until now the FCC action has been measured and restrained in the sense that no sanctions or fines have been imposed, Winter pointed out. Moreover there is no attempt on the part of the FCC to preclude broadcasters from transmitting foul language in all instances, he added.
For this reason, the PTC brief is focused specifically on the question of when and not if vulgarities are permitted, Winter said.
"The FCC's action under review here is not a ban on broadcasting, only a channeling of certain kinds of language to a time when children are less likely to be watching and listening. The same was true in Pacifica," the PTC brief states.
Although the Supreme Court is hard to read, Winter is heartened that the case has been taken up and hopes for more than just an administrative ruling.
"The justices could have easily passed on this case allowing the networks to have free reign," he said. "But they didn't. Our brief specifically asks the court to address the constitutionality of the FCC's ability to enforce the broadcast decency law. A full rebuke of the lower court ruling is in order."
