International Law

Last week I blogged that the US Supreme Court is going to review the Federal Communications Commission?s policy of punishing broadcasters for airing "fleeting expletives" (see here).  Today that decision is the subject of an editorial in the New York Times:

The F.C.C.?s rationale for its fleeting expletives policy is indeed thin. It claimed it was only trying to reflect community standards. But there is scant evidence that the public is up in arms about an occasional coarse word. The words the commission finds so offensive, and so in need of punishment, are the sort commonly heard in PG-rated movies and walking down the street.

The stakes in this case are much higher than whether awards shows can air a few bad words. The F.C.C. has used its new policy to turn itself into a roving censorship board. Among other outrageous decisions, it hit KCSM, a small public-television station in San Mateo, Calif., with a $15,000 fine for broadcasting ?The Blues,? a PBS documentary about the musical form that, given the subject matter, understandably contains fleeting expletives.

The F.C.C.?s fines can be much larger. It imposed a $550,000 penalty on CBS a few years ago after it broadcast Janet Jackson?s Super Bowl halftime ?wardrobe malfunction.?

At the same time, the commission?s policies are extremely vague. That combination, of extreme punishments and vague rules, leads broadcasters to engage in self-censorship to steer clear of the government?s wrath.

That self-censorship deprives the public of important cultural and artistic expression. Last fall, when PBS broadcast Ken Burns?s celebrated World War II documentary, ?The War,? it distributed two versions. One had been scrubbed of expletives for affiliate stations worried about F.C.C. fines, a troubling whitewashing of the nature of war. In 2006, Rocky Mountain PBS canceled a broadcast of ?Marie Antoinette,? an historical documentary, out of concern that it would be punished for broadcasting the show?s sexually suggestive pencil drawings.

The F.C.C. asked the Supreme Court to review the Second Circuit?s ruling, and it is worrisome that the justices agreed to do so. The best thing they could do for freedom of speech and artistic expression is to affirm the appeals court?s thoughtful ruling.

Read more here.