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Life, Politics and the Law From ABC News Correspondent Jan Crawford Greenburg
Jan Crawford Greenburg is a correspondent for ABC News' bureau in Washington DC. She covers politics, the Supreme Court and provides legal analysis for ABC News. She is a graduate of the University of Chicago's law school and is a member of the New York bar.
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FCC Decision, Round One
April 28, 2009 11:40 AM
The FCC won round one in the Supreme Court this morning in its effort to ban four-letter words on radio and network television, but the Court gave a strong hint that the broadcasters will ultimately win the war.
In a 5-4 decision by Justice Scalia, the Court said the FCC--as a matter of administrative law--had not acted arbitrarily or irrationally when it changed its policy to ban even the fleeting use of an expletive. But the Court declined to address the bigger issue of whether the ban violates the broadcasters rights under the 1st Amendment. Instead, it said an appeals court must first address that major question.
The case produced five different opinions--and a number of strong signals that the Court would rule for the broadcasters on the constitutional question. In separate concurring opinions, Justices Kennedy and Thomas indicated they would join the four liberals to find the FCC ban unconstitutional.
Thomas has a fascinating concurrence, in which he goes so far as to suggest the Court should rethink two cases (Red Lion and Pacifica) from the late 1960s and 1970s which upheld the so-called "fairness doctrine" and allowed the FCC to regulate broadcasts of indecent material. Thomas said those decisions were a "deep intrusion" into the 1st Amendment rights of broadcasters and without basis in the Constitution.
What's more, he said, times have changed--in addition to being legally incoherent, those cases make no sense factually, either. First, he said, "dramatic technological advances have eviscerated" the factual assumptions underlying those decisions--which were of course issued decades years ago, when broadcast spectrum was scarce. In addition, he said, traditional broadcast television and radio no longer are "uniquely pervasive" forms of media--as broadcast media knows all too well.
April 28, 2009 | Permalink | User Comments (2)
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I am willing to accept a few epithets in exchange for a repudiation of the Fairness Doctrine!
Posted by: Tom J. | Apr 28, 2009 4:39:04 PM
Yet again, I am astounded at how unconstitutional we have become in this country. With the advances in technology and the ratings systems that are already in place there is no reason why the people who don't want to see or hear what is considered indecent material cannot block these programs or channels from what they view or listen to. In my opinion, if you don't like what's on, change the channel, simple as that.
Posted by: Aj | Apr 29, 2009 5:50:04 AM
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