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Stuart Benjamin has a few things to say about the FCC and indecency.
Posted by Casper at April 21, 2004 10:56 AMThe House has passed legislation that increases the maximum monetary penalty to $500,000 for each violation and that provides for revoking the license of broadcasters who are penalized three times. Other legislation would (to the delight of George Carlin) define the statutory term “profane” to include any form of eight objectionable words. ...
The bottom line for broadcasters is that they are much more likely to be penalized, and that the penalties will probably be more severe – and as a result a judicial challenge is more likely.
In recent years broadcasters have refrained from bringing judicial challenges to the regulation of broadcast indecency precisely because the fines were small, and rare, enough that broadcasters decided it was not worth the costs of antagonizing the FCC and Congress. Now, with heavy fines (and maybe even license revocation) on the line, broadcasters are more likely to do so. Indeed, that process began yesterday, when both NBC and a coalition of media groups filed petitions asking the FCC to reverse its decision. It looks like those groups are girding for a judicial challenge to the indecency regulations.
This is significant, because the Supreme Court probably would – and in my view should – find these indecency regulations unconstitutional. With respect to newspapers and magazines, telephones, and cable television, the Supreme Court has held that the government may not reduce the adult population to viewing only what is fit for children. As the Supreme Court noted in the 2000 Playboy case on cable indecency, a core principle of the First Amendment is that "The citizen is entitled to seek out or reject certain ideas or influences without Government influence or control."