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FCC combing tapes of sports broadcasts for dirty words from fans

Forgive me if this has already been posted I did a search and could not find it on the boards.

WASHINGTON (Hollywood Reporter) - In its continuing crackdown on on-air profanity, the FCC has requested numerous tapes from broadcasters that might include vulgar remarks from unruly spectators, coaches and athletes at live sporting events, industry sources said.

Full story here
http://www.nytimes.com/reuters/arts/entertainment-media-indecency.html
 
They're seeking news broadcasts too.

I think that once the FCC starts looking at newscasts for indecency, you may see a court or two perk up and limit the indecency stretch a bit.

Surely all indecency under the statutes and regulations as currently situated is illegal and a broadcast of it--whether entertainment programming, sports, or news--may be fined under existing laws and regulations.

However, there is a public interest in free political debate, and in news reporting that is free from governmental filters. I'm willing to bet that on a legal challenge to a news broadcast that may contain incidental indecency, a court will say "hold on: we're willing to put up with alot here, but news--especially live--is a public service and a public interest. Indecency laws have their place, but news is outside their intended purview."

It will place existing First Amendment law a bit cockeyed, but not that much: such an interest already exists for print news, and it is not that big a stretch to say the same for broadcast news. Live is live, and there surely is a public interest in reporting events as they happen.

If it works to end this silly 28-year legal fiction that broadcast communications are due less First Amendment freedom than other forms of speech, so be it. Chipping away slowly is better than nothing.

By the way, I saw an interesting analytical take on Pacifica the other day: it made the point that an entire monologue filled with indecent material could be regulated, but that Pacifica held that only expanded contexts could be regulated and that incidental utterings of indecent material was not actionable. Interesting thought, which does accord Pacifica's holding its due, but is the entire opposite of what the courts, Congress, and the FCC have done over the last 28 years. They've now gone TOTALLY the other way--in my view, probably unconstitutionally--in making any utterance of a word ("f--k" and "s--t" for example, see In re Golden Globes (2004) and In re Without a Trace (2006)) per se indecent, ignoring context which is what Pacifica implored the Commission to do.
 
Johnny Morgan said:
I think that once the FCC starts looking at newscasts for indecency, you may see a court or two perk up and limit the indecency stretch a bit.

Speaking of the S-word... now it looks like we're going to have to run Presidential speeches on 7-second delay?
 
Ah, but Presidential speeches and other political speech is fully protected and the FCC cannot even channel it to safe harbor hours if it contains indecency.
 
Johnny Morgan said:
Ah, but Presidential speeches and other political speech is fully protected and the FCC cannot even channel it to safe harbor hours if it contains indecency.

I'm pretty sure this applies only to paid campaign ads.
 
But the paid campaign ad ruling was based on political speech being the most protected form; whether it is paid for, or not, political speech is totally protected--even if otherwise indecent language is employed.

The FCC's 1980 rulingin In Re Commoner and Harris against NBC Radio, 87 F.C.C. 2d 1, could not solely rest on the fact that an ad is paid--it had to rest on some greater purpose for the protection, and that is the historic and precdential protection for political speech. And nowhere is that more important that in elections for office, and where our leaders are speaking on issues of public import or policy. Must-carry political ads under Section 315 are meant to allow a candidate to discuss issues unfettered from licensee involvement. Going one step further, the Commission quoted the Senate Committee Report stating, at footnote 7:

"The flat prohibition against the licensee of any station exercising any censorship authority over any political or public question discussion is retained and emphasized. This means that the Commission cannot itself or by rule or regulation require the licensee to censor, alter, or in any manner affect or control the subject matter of any such broadcast and the licensee may not in his own discretion exercise any such censorship authority ... ." S. Rep. No. 1567, 80th Cong., 2d Sess. 13-14 (1948) [emphasis added].

It is almost necessary to state that in a discussion of public issues by political leaders, any indecent material as part of that discussion is not only not actionable by the FCC, it would be considered censorship for a licensee--out of fear of a fine--to limit that speech through a delay, a buzzer, or the most extreme form of sanitized scripts.
 
Johnny, you make an interesting point. Does that mean that otherwise indecent or vulgar speech, uttered during an open legislative session by either a legislator or a member of the public during an open session, would be protected?

One other question: If a station decided to air a public session of a legislative body, could it be considered censorship if they cut away to other programming before the meeting concluded? Especially if they cut away during the discussion of a particular topic?
 
Does that mean that otherwise indecent or vulgar speech, uttered during an open legislative session by either a legislator or a member of the public during an open session, would be protected?

If you mean the FCC couldn't fine because of it, I would think yes. No doubt the activities of a government or political body are important public events and of public interest. There already is a defamation protection for publishers running from the accurate recording of public events--if a lie is told in a public meeting or legislature, and a newspaper or TV station reports that, and is sued, they have an affirmative defense based on accurately recording public events.

I can guarantee that a similar line would be drawn from that defamation defense to a similar defense for broadcasting indecency contained in a political body's activities. For example, let's say during a Congressional session, broadcast on NBC for whatever reason, a member used the words "s--t" and "f--k"--both held by the FCC to be per se indecent in all contexts (a highly questionable ruling under Pacifica, but no matter). No doubt a session of Congress is of public interest and importance. If NBC decided to sanitize that session, to take out any indcent material, it would be reacting to a Commission rule that de facto censors a broadcast of the Congress--which immediately raises flags, because this is not only political speech, but also government speech.

There has not been, to my knowledge, a case where such a thing came up for review--not do I know of a Commission file for such a broadcast. Probably because the FCC knows that such a fine would be immediately appealed, and probably to the Commission's detriment. It is without question that Supreme Court precdent and First Amendment jurisprudence gives the most protection to political speech--even political speech that contains otherwise indecent material. Though Justice Stevens in Pacifica distinguished Cohen v. California (1971) (the "f--k the draft" jacket case), faced with the Commission fining for what really is political speech of the most protected kind--spoken by government officials--I can be certain that Cohen would control, and not the Pacifica rule.

As to your other question, broadcast "censorship" if they cut away from an official government body's meeting or activities--no, it would not be censorship, necessarily, because the government cannot tell them to carry certain programming. I understand how you could get that idea from the Senate Committee's Report statement from 1948, but it does not require a station to carry any programming in its entirety. However, should a station choose to do so, I'm fairly certain that the station could not, out of fear of an FCC fine, censor an official government proceeding or sanitize official government speech. The stations are free to join and disengage from government proceedings without any harm--it is a programming matter. But having taken the step of broadcasting proceedings or airing a political ad, the station may not censor, delay for content, or sanitize for content that political speech.

Remember, no station is required to accept political ads or air political proceedings, but once they do so accept, they are required to follow the non-censorship laws (e.g., Section 315 of the 1934 Act or other applicable laws).
 
Johnny Morgan said:
Remember, no station is required to accept political ads...

Better not take that legal advice...

From the Communications Act:

SEC. 312. [47 U.S.C. 312] ADMINISTRATIVE SANCTIONS.
(a) The Commission may revoke any station license or construction permit--
...
(7) for willful or repeated failure to allow reasonable access to or to permit purchase of reasonable amounts of time for the use of a broadcasting station by a legally qualified candidate for Federal elective office on behalf of his candidacy.
 
It wasn't legal advice at all.

However, I did choose my words "political ads" carefully. A station can air a debate, or a discussion with a federal office seeker, or open up the station's airtime to a political candidate without it being bought as an ad and not run afoul of Sec. 312.

An ad is not the only means of "reasonable access".
 
Seems I recall presidential hopeful Barry Commoner (who ran in the 1980 election on the Citizens Party ticket), had a radio ad in which the very first word was "bulls--t".
Had to air it as it was, it was a political ad...couldn't edit or otherwise mess with it.
 
That's right. His case was the one I quoted and analyzed in depth in the middle of page one of this thread. Broadcasters are unable to edit--even for indecency--a paid political ad purchased by a federal candidate (I'm loathe to use the adjective "federal" there because I'm certain the same protection would apply to a state or local candidate too) pursuant to Sec. 315. Once they take the ad, they have to air it as is.
 
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