Some will be pleased and some horrified that the Supreme Court let stand the Federal Communications Commission's change of rules on bad language -- especially but not confined to the "f" word and the "s" word. Even if their use on radio or TV is fleeting and unanticipated, the FCC can still levy heavy fines not just on the program where the offense originated but on all affiliates that carry the offending program.
But this isn't the last word. The court, in a 5-4 opinion written by Antonin Scalia, merely said that the FCC didn't exceed its authority; in other words, it acted properly given its rules and mandates. But the underlying issue is a First Amendment question, and the court deliberately skirted that. Scalia even told the lower court he was sending the case back to that it should deal with the First Amendment issue, which the Supreme Court would likely take up soon, perhaps even on this case. And given the First Amendment doubts raised by some of the justices, including some who voted in the majority, the outcome next time might be a little different.
Clarence Thomas gave those doubts a clear expression (via hit & run):
"The text of the First Amendment makes no distinctions among print, broadcast, and cable media," Thomas wrote (quoting an opinion in an earlier case), "but we have done so." He said "this deep intrusion into the First Amendment rights of broadcasters" is based on rationales that never made much sense and seem more outmoded every day: "the scarcity of radio frequencies," plus the idea that broadcast TV and radio are "uniquely pervasive" and "uniquely accessible" to children. "Even if this Court's disfavored treatment of broadcasters under the First Amendment could have been justified" at the time of the decisions upholding the "fairness doctrine" and the ban on broadcast indecency, Thomas wrote, "dramatic technological advances have eviscerated the factual assumptions underlying those decisions."
The descent of our vehicles of popular culture into crudeness and vulgarity might be delplorable, but that's the marketplace for you. There are good and bad and ugly, and the choices are ours, and they'll keep giving us what we choose. The First Amendment, whatever we decide it ultimately means, should be applied equally to all media.
