Critic’s notebook: FCC vs. Fox, the Supreme Court decides

The Supreme Court has ruled, finally and for the second time, in Federal Communications Commission vs. Fox Television Stations, et al. The case, which has been kicking around the justice system since 2007, involves (non-monetary) sanctions directed against Fox by the FCC for “fleeting expletives” ad-libbed on awards shows by enthusiastic pop stars in 2002 and 2003, and it was combined for review with a separate case in which ABC was fined more than a million dollars for showing seven seconds of buttocks and a glimpse of the side of a breast on “NYPD Blue,” long ago. (Note also: Janet Jackson and Her Famous Malfunctioning Wardrobe, which traced a similar path through the system in this same time.)

The court’s unanimous decision, issued Thursday and written by Justice Anthony Kennedy, upheld a ruling from a lower court that voided the FCC’s indecency regulations as “unconstitutionally vague” -- that is, neither the rules nor their suddenly stricter interpretation, inspired by the Jackson malfunction, were made clear enough that broadcasters could reasonably be expected to follow them. (Cable is a different kettle of television; the FCC has no standing there, and cable networks can be as bad as they want to be.)

“Regulated parties should know what is required of them,” Kennedy wrote, “so they may act accordingly; and precision and guidance are necessary so that those enforcing the law do not act in an arbitrary or discriminatory way. When speech is involved, rigorous adherence to those requirements is necessary to ensure that ambiguity does not chill protected speech.”

At the same time, the court, deciding the case on grounds of due process rather than free speech, declined to take up the constitutionality of the regulations; rather, it affirmed the FCC’s right to keep writing them, and broadcasters’ right to challenge them: We will meet here again, the justices as good as said. It was the sort of decision in which both sides and their supporters were able to claim victory; in other words, this war is not over.

I have my problems with the FCC, which often seems to act as a handmaiden to the industry on big issues -- media conglomeration, most distressingly -- while it beats its chest and growls about the little ones. The huge indecency fines the commission began grandly handing out in 2004 strike me, individually appropriate or not, also as a matter of misdirection, of getting the crowd to look to the left while its watch is being stolen from the right.

Still, that the rules are poorly written and inconsistently enforced only means that they need to be better written and evenly applied; it doesn’t mean that there should be no rules. Even as regards private property, there have to be limits. You shouldn’t be able to build a glue factory in a housing tract, no matter how many lots you own there. But you should absolutely not be allowed to build one in a public park. The airwaves are like that, a common space where broadcasters squat in exchange for serving the “public interest, convenience and necessity,” but generally do what they want and act like they own the place.

The FCC needs to straighten its own house, but that the industry can be left to police itself, as the National Assn. of Broadcasters would prefer, seems whimsical at best. Networks act more in the interests of their stockholders than for the good of the wider public -- a public admittedly diverse and therefore hard to universally satisfy -- whom they regard more as a commodity to be traded than as a community to be served.

I hold the 1st Amendment as first among amendments. But when a commercial TV network starts banging on about free speech, it is not usually talking about the expression of political or philosophical ideas or the display of challenging new art, but rather the right to use penis jokes in its 8 p.m. sitcoms. Indeed, were the networks as civic-minded as they like to pretend in moments of public confrontation like this, they might provide a little free air time to political candidates or take more seriously the requirement that they schedule a modicum (three hours a week -- not even a modicum) of “educational” children’s programming.

Furthermore, nothing in the rule book inhibits the expression of ideas; there are prohibitions only on the manner and hour of their expression: You can’t say it naked, and you need to avoid a handful of words out of the hundreds of thousands that make up the English language. Under the “safe harbor” rule, you’re supposed to keep a lid on the super-sexy and scatological stuff until after 10 p.m. (when the kids -- it’s all about the kids -- are asleep or ought to be), which none of the networks do, really. But that is about it.

Times change, and TV wants to change with those changing times. (In olden days, a hint of stocking, etc.) And, our ingrained American prudishness notwithstanding, it should change, and does, and will. Indeed, if there has been a “chilling effect” on broadcast TV since the FCC went on its ticket-writing spree eight years back, I have not felt it from my side of the screen. It just gets hotter in here.

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