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January 13, 2012 7:43 pm
Where does the boundary lie between what is decent and indecent? Ethicists have pondered the question for millennia, but in the US, the Federal Communications Commission has arrived at a fairly precise answer. The border lies somewhere south of “dickhead” (which the FCC deems acceptable to broadcast on television) and north of “bullshit” (which the FCC declares off-limits). This guidance, alas, was not precise enough for a US court of appeals, which two years ago voided the FCC’s decency standards. The case (now called FCC v. Fox Television Stations et al) was appealed to the US Supreme Court, where it was debated on Tuesday.
America’s mighty TV networks keep trying to overturn the FCC’s regulatory power on free-speech grounds. Federal authorities have been regulating radio since 1921. First Amendment protections of free speech do not apply in the same way on the air, because the TV and radio spectra are scarce public goods licensed to profitmaking businesses. The government can therefore demand that broadcasters respect “decency”, as long as the term is narrowly defined. According to the FCC, the “concept of indecent is intimately connected with the exposure of children to language that describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities and organs at times of the day when there is a reasonable risk that children may be in the audience”.
The central controversy the court discussed on Tuesday was an episode of NYPD Blue during which a woman appeared naked before a disquieted young boy. That the networks are cavalier about protecting children from lewd images is clear from their briefs. A lawyer for ABC argued, “Every child has seen buttocks.” (To which the FCC’s lawyer countered: “Exposure to nude strangers in one’s own home is not a typical childhood experience.”) The lawyers for Fox, NBC and CBS argued that “fewer than one-third of American TV households have children under 18 years old”, as if market share ought to determine the right and wrong of protecting children from lewdness. Whether that lady, and those buttocks, violate “contemporary community standards” depends on context.
One misconception the networks were eager to foster is the proliferation of electronic media is reducing the importance of broadcast TV. Seven-eighths of US households now get cable TV. Justice Samuel Alito asked, “Why not let this die a natural death?” But the networks are only playing dead. There are still 34m households and almost 70m television sets that get broadcast TV. More importantly, the networks maintain a dominant position in TV that gets delivered by cable, and they set the tone for the rest of the industry. During the 2004-05 season, according to the FCC’s brief, all of the 256 most viewed programmes were network shows, as were 485 of the 495 most viewed.
If it were true that the networks were being swallowed up in a maelstrom of cable and internet programming, there would be less reason to regulate them. The networks argue, much as banks did up until the 2008 crash, that they can be trusted to regulate themselves, because it would be bad for business to behave irresponsibly. “The truth is,” Fox’s lawyer told the court, “the advertisers and the audiences that have to be responded to by the networks insist on some measure of restraint.”
One of the curious elements of the case is that justices cited the growth of cable as a new justification for the present regulatory regime, rather than a reason to scrap it. Where decades ago there had been a government interest in keeping network television “decent” because there was so little TV to start with, nowadays the interest is in having at least some programming sheltered from the tawdriness of mainstream American culture. Chief Justice John Roberts said: “People who want to watch broadcasts ... where there is nudity, there are 800 channels where they can go for that. What the government is asking for is a few channels where you can say they are not going to hear the S-word, the F-word. They are not going to see nudity.”
An important abstract question lurks in the background of this case: whether free systems tend towards diversity or homogeneity. The usual assumption has been that the natural state of public media consists of a thriving variety of viewpoints, and that the government can only chill it when it intervenes to regulate expression. If this week’s oral arguments are anything to go by, the US Supreme Court is convinced otherwise. The most archaic kind of regulation is responsible for what variety American TV retains. Deregulating will only mean more boobs, bums and bullets and a rush to the lowest common denominator.
The writer is a senior editor at The Weekly Standard
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