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Editorial: High Court Should Avoid Indecency Trap

Mar 23, 2008  •  Post A Comment

It is irresistible to observe that comedian George Carlin and Federal Communications Commission Chairman Kevin J. Martin are now odd bedfellows.
It was Mr. Carlin’s legendary “Filthy Words” monologue that spurred the Supreme Court to take up the subject of broadcast obscenity 30 years ago. And now, Mr. Martin’s effort to punish broadcasters for airing even fleeting obscenity has the high court ready to take up the issue of indecency again.
The case got to the Supreme Court after the Second U.S. Circuit Court of Appeals rejected the FCC’s efforts to cite Fox stations for airing expletives during the live broadcasts of the Billboard Music Awards in 2002 and 2003. The appeals court judges got it right when they ruled that Mr. Martin’s agency failed to articulate a reasoned basis for its bar on so-called fleeting expletives.
Now the Supreme Court has accepted the case for review. We urge the court to back up the appellate judges and to force Mr. Martin’s agency to explain why it changed the rules on fleeting expletives and what reasoning supported the decision.
The court doesn’t have to delve into whether it’s permissible for broadcast TV stations to air the kind of dirty words that Cher and reality show personality Nicole Richie uttered on the Billboard awards shows. And we believe the court shouldn’t venture into that turf.
To do so would put the justices in the unenviable position of drawing lines that soon lead to absurd results. The court could go ahead and ban those words, said even in passing, on broadcast TV. But what of slightly less graphic terms? How long would it be before the FCC was again before the court, asking it to ban those words as well? And what of the easily imagined exceptions for words uttered live on TV in a moment of shock or surprise? There’s not much upside in that game for the Supreme Court.
Rather, the court should force the FCC to do what it should have done in the first place: Make clear rules, explain why they are necessary and enforce them uniformly. The agency failed to do that in this case.
And there we have the difference between Mr. Carlin and Mr. Martin: Mr. Martin’s approach to obscenity just doesn’t get any laughs.

One Comment

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