Inching Closer to a Consistent First Amendment for the Information Age

by on January 5, 2011 · 0 comments

Back in 2007 I penned a law review article, “Why Regulate Broadcasting: Toward a Consistent First Amendment Standard for the Information Age” in which I argued that “If America is to have a consistent First Amendment in the Information Age, efforts to extend the broadcast regulatory regime must be halted and that regime must be relegated to the ash heap of history.” I made that argument based not only upon the fundamental bankruptcy of the rationales supporting the old broadcast regulatory regime, or its unfairness to broadcasters relative to other media competitors, but also because such asymmetrical regulations no longer make sense — and are increasingly impractical to enforce — in an age of technological convergence and media abundance.

The good news is that, slowly but surely, the courts are coming around to this logic, at least as it pertains to speech controls.  We saw that again today with a ruling by the Second Circuit Court of Appeals that held as unconstitutional $1.2 million in fines that the Federal Communications Commission (FCC) levied on ABC broadcast affiliates seven years ago for airing a brief glimpse of Charlotte Ross’ bare buttocks on the cop drama “NYPD Blue.”   As the Wall Street Journal’s Amy Schatz notes, “Broadcasters have now won a series of court victories against government efforts to police airwaves and fine stations for airing risqué content. The Supreme Court could soon get a chance to review the issue. In the meantime, the FCC’s campaign to enforce indecency rules has ground to a halt.”

It remains to be seen whether the Supreme Court will throw the whole regime out, but I can’t help but think that’s where we are headed. The only real argument left for retaining the old regulatory regime it is that broadcast television should be treated as one massive safe harbor, where people could find squeaky-clean content 24/7.  The current regime is a partial safe harbor for the hours of the day when children are supposedly present in the viewing audience (6am – 10pm).  Some have argued that safe harbor should be retained or even expanded such that parents have a place that they know will supposedly always be “safe” for their kids.  But the problem with that notion is that (1) parents already have plenty of other things to let their kids see or hear if they are nervous about what might be on broadcast TV, and (2) we can’t stop viewers or listeners from flocking away from more heavily regulated broadcast platforms, as they have already been doing for years.  In a sense, therefore, technological advances make this regime less relevant with each passing day and eventually may make it moot altogether even if it’s not tossed out by the Supreme Court for being so hopelessly vague.

As a matter of principle, however, this old regime needs to go because it was never justifiable to begin with.  The courts should have never allowed a technology-specific carve-out to the First Amendment to take root in the law. Again, we need to get back to a consistent First Amendment that protects all speech and media platforms equally.

P.S. I’m forced to agree with Joe Flint’s quip in the L.A. Times that “There is nothing indecent about actress Charlotte Ross’ rear end.”  Frankly, I’ve never understood why her bare butt earned the wrath of the FCC.  Now, on the other hand, when we had to see Dennis Franz’s flabby rear-end in that one painful shower scene in season 2, well, that was just plain wrong.  Blatantly obscene. The FCC should have commandeered DoD drones and taken out all the ABC broadcast towers in America that night.  (Kidding!)

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