ORLANDO, Fla. — Scott Plakon is careful about what he allows his six children to watch on television. Public decency laws used to back him up.
But after a court decision June 4, parents like Plakon will need to be even more careful.
“Last year the public decided, through their elected representatives, that these organizations should be fined for putting things like the F-word and S-word on television during family viewing hours,” said Plakon, who owns an Orlando publishing company. “Now, over our publicly owned airwaves, they can come into my living room and use that language.”
On June 4, the 2nd Circuit Court of Appeals, based in New York, rejected an attempt by the FCC to regulate what it described as “fleeting” uses of expletives on primetime broadcast television. The decision has both sides debating the enforcement of broadcast indecency statutes.
The FCC tried to hold broadcasters responsible following the airing of expletives used on four different occasions, on ABC, CBS and FOX, since 2002. The FCC stood by an indecency standard developed in 2003 following the use of a similar expletive by U2 lead singer Bono during the Golden Globe Awards. That policy stated that any use of the F-word was indecent because of its inherent offensiveness and sexual connotation. FOX filed the appeal.
In a 2-1 vote, the three-judge appellate panel overturned that decision, describing it as “arbitrary and capricious.” The decision stated that the FCC had not adequately justified its change in standards. Judge Pierre Leval dissented, saying that, “An agency is free to change its standards.”
Both sides accused the other of being “divorced from reality.”
Plakon hopes parents will unite on the issue. “If you ask most parents, either conservative or liberal, they probably don’t want their children listening to the F-word.”
The FCC was deeply disappointed by the ruling, as were media watchdog groups such as the Parents Television Council.
“I completely disagree with the court’s ruling and am disappointed for American families,” said FCC Chairman Kevin Martin in a press statement following the ruling. “It is the New York court, not the commission, that is divorced from reality.”
“My concern now is that some of these guys, in the aftermath of victory, will say we can do whatever we want and say whatever we want and the FCC be darned,” FCC Commissioner Michael Copps said. “They said that the commission’s warning was ‘divorced from reality’ and that broadcasters have never barraged the airways with indecent material. I think the airwaves have been barraged with indecency.”
“As we predicted several months ago, a court has cleared the way for television networks to use [vulgar expletives] in front of children at any time of the day,” said Tim Winter, president of the Los Angeles-based Parents Television Council. “By a mere 2-1 margin, the 2nd Circuit Court of Appeals has, in essence, stolen the airwaves from the public and handed ownership over to the broadcast industry.”
Groups supporting artists, on the other hand, applauded the ruling, saying that the FCC’s actions threatened creative programming.
“These overly broad and arbitrary commission decisions put creative, challenging, controversial, non-homogenized broadcast television programming at risk,” said Jonathan Rintels, executive director of the Center for Creative Voices in Media, which was actively involved in supporting the case. “The chilling effect of these now overturned commission decisions harmed not only media artists, but the American public.”
“Score one for the First Amendment,” said Andrew Jay Schwartzman, president and CEO of the Media Access Project, which also argued in support of the court’s ruling.
“What’s at issue is not the constitutionality of the law, but the FCC’s adjudication of the law,” said Dan Isett, director of corporate and government affairs for the PTC. “You have a singular federal court of appeals in New York City trying to set indecency rules for the entire country. I expect an enormous backlash to it, and anticipate there will be some action by Congress.”
What Congress may do remains to be seen. Just a year ago, lawmakers passed a bill increasing broadcast indecency fines. It was overwhelmingly supported in both the House and Senate.
“This is a major problem for millions of Americans,” said Copps. “We hope the people or Congress wouldn’t stand idly by.”
Scott Plakon isn’t standing by. He has already notified his congressional representatives of his displeasure with the court ruling. Others warned against further congressional involvement.
“In light of today’s clear court of appeals ruling that the FCC has abused its discretion to regulate television content … it would be extremely unwise — even irresponsible — for Congress to now grant these exponentially expanded new powers to the commission,” said Rintels.
However, at least two senators publicly disagreed with the court’s ruling.
Sen. Daniel Inouye, D-Hawaii, released a statement expressing his hope that the commission ‘‘will move swiftly in appealing this case to the Supreme Court.’’ Inouye is chairman of the Senate Commerce, Science and Transportation Committee, which oversees the FCC. Sen. Jay Rockefeller, D-W. Va., said that the ruling defies common sense.
“Overnight, the court called into question nearly 30 years of FCC precedents and regulations aimed at protecting children and families from obscene language and indecent programming during family hours,” said Rockefeller in a press statement. “If the commission can’t enforce its own longstanding rules, I fear that parents could be held hostage to those who flagrantly disregard the spirit of the family hour and the intent of the TV rating system.”
In his statement following the decision, FCC Chairman Kevin Martin suggested one possible solution to parental concerns.
“Today’s decision by the court increases the importance of Congress considering content-neutral solutions to give parents more tools and consumers generally more control and choice over programming coming into their homes,” Martin wrote. “By allowing them to choose the channels that come into their homes, Congress could deliver real power to American families.”
Plakon offered some other possible solutions.
At present, the Plakon family has a few favorite television shows that they watch routinely. There are other channels, such as MTV, that are forbidden.
“Parents will have to have their finger on the mute button,” said Plakon. “We’ll have to be much more careful. My inclination will probably be to avoid live programs, award shows, and sporting events.”
Tim Drake is based in
Saint Joseph, Minnesota.