We wrote yesterday about the Second Circuit Court of Appeals ruling throwing out two FCC indecency fines. Further details on the legal reasoning in that decision are given in our firm’s advisory published today. The decision also provoked heated reactions from two of the FCC Commissioners. Commissioner Copps issued a statement warning broadcasters not to engage in gratuitous sex and violence on television. Chairman Martin’s statement was even more aggressive – using the "F-word" and the "S-word" freely – without resorting to the euphemisms that we employ here to avoid triggering spam blockers – for the shock value to emphasize how he believed that a liberal court overlooked the what he thought was a common-sense FCC decision with which most people would agree.
It seems unlikely that there were many broadcasters waiting for this decision to give them the green light to run out and start gratuitously airing sex and violence. Look at basic cable. Years ago, court rulings held that indecency rules did not apply to cable television. Yet, as I’m writing this, the Daily Show on Comedy Central is airing, and all the explicatives that are of such concern to the Commission are edited out of the program – and this is for a program that is not only on cable, but also is airing at 11 PM, in the safe harbor where indecent programming can air even on broadcast television. And who has seen a rush of indecent programming on broadcast television in those safe harbor hours? The Court decision only reached the common sense decision that the passing use of an explicative should not jeopardize an FCC license. No matter what the Commissioners statements may say, the ruling was not one that opens the door to filth flooding the airwaves, but instead it was only one that demanded that the FCC apply logic and consistency in line with constitutional requirements when making its rulings.