The U.S. Supreme Court has avoided the First Amendment issue in a ruling on behalf of broadcasters fighting an indecency finding for broadcasts of the F-word and nudity.
The court ruled 8-0 in FCC v. Fox Television Stations that Fox and ABC did not have fair notice from the Federal Communications Commission that fleeting expletives and momentary nudity could be found indecent.
SCOTUSblog founder Tom Goldstein writes at his blog that the decision is “very narrow” and “doesn’t decide the big questions." Kennedy acknowledged the limited scope of his opinion for the court. “Because the court resolves these cases on fair notice grounds under the due process clause, it need not address the First Amendment implications of the Commission’s indecency policy,” he wrote.
In the case before the court, three broadcasts were targeted by the FCC: an NYBD Blue episode on ABC showing a shot of a bare female buttocks, and two Billboard Awards shows on Fox Television that broadcast fleeting expletives. Kennedy wrote that singer Cher and “a person named Nicole Richie” had both used the F-word on the awards shows. Richie had used the S-word as well in her remarks: “Have you ever tried to get cow s*** out of a Prada purse? It’s not so f***ing simple.”
“Here, the court rules that Fox and ABC lacked notice at the time of their broadcasts that the material they were broadcasting could be found actionably indecent under then-existing policies,” Kennedy wrote. “Given this disposition, it is unnecessary for the court to address the constitutionality of the current indecency policy.”
They don't rule on something seemingly until they absolutely have to. So it's not surprising they wouldn't address the 1st amendment implications at hand. But they should and they should do so in favor of letting people (or tv writers in this case) say what they want.
I'm not a free speech absolutist. You can't yell fire in a crowded theater. You can't slander people. Basically, you can't harm people with your speech. That should be the only barrier (and no, I don't think money is the same as literal speech). And since I don't see how simply hearing the word "fuck", or whatever other expletive the FCC doesn't like, can hurt anyone, I don't think it should be outlawed on tv or anywhere else.
Beyond the fact I don't think hearing "fuck" or seeing a naked body will harm anyone, I just don't think the FCC or any regulation on those things is necessary. Any conservatives who follow this blog will probably be surprised to hear this, but I think the free market would take care of the "policing" of expletives and any other kind of "indecency" on tv. If one major network basically became HBO and massive amount of people disapproved they simply would stop watching. And that network would be forced to change its content.
You see this work with movies. If you want to see nudity and hear expletives you can. If you don't want those things there are movies out there for you. That's not to say I don't have problems with the MPAA. But it's a better system than the FCC and tv. And if a bunch of uptight people are going to keep complaining and regulating tv, it would be nice if the supreme court could settle things a bit and tell us what they think the 1st amendment allows.
Update: Great point by Adam Serwer:
The court's narrow ruling reflects a very different attitude towards the First Amendment than the one on display in the court's decision in Citizens' United, which opened the spigot for unlimited, unregulated corporate money in elections. As Justice Anthony Kennedy wrote in his Citizens United opinion, "it is our law and tradition that more speech, not less, is the governing rule." That rule appears to apply only to unlimited corporate cash, not sideboob. Which do you think is more threatening to the democratic process?