July 14, 2010

Fleeting Expletives

Filed under: Uncategorized — ruleswatch @ 8:51 am

Although the realization that the world of media has massively changed in the past quarter century, many freedom of expression advocates argue that the world of regulation has not caught up.

The result is that laws controlling expression often seem out of date, and unnecessarily rigid or vague. In 2001, the US Federal Communications Commission, the American equivalent of the CRTC, adopted a strict policy on expletives, among other things, in broadcasts. In 2004, Bono let fly the “F” word in that year’s Golden Globe awards ceremony. Other stars and other words followed. Random explosions of obscenities earned the litigation title “fleeting expletives.”

US networks felt exposed to “risking massive fines or possibly even loss of their licenses,” in the case of such random (and, to some degree, uncontrollable) indiscretions.

Since the Bono experience (and others) the American federal court system has been ringing from  the constitutional litigation that has resulted.

Now, the American (federal) 2nd Circuit Court of Appeals has just (July 13) struck down the FCC regulations that entrapped the Bono expletive and many others while subtly urging that precedents must be re-examined in light of these newly available technologies. It described the changes as follows:

The past thirty years has seen an explosion of media sources, and broadcast television has become only one voice in the chorus. Cable television is almost as pervasive as broadcast – almost 87 percent of households subscribe to a cable or satellite service – and most viewers can alternate between broadcast and non-broadcast channels with a click of their remote control… The internet, too, has become omnipresent, offering access to everything from viral videos to feature films and, yes, even broadcast television programs.(“The number of suppliers of online video and audio is almost limitless.”). … “[c]hildren today live in a media environment that is dramatically different from the one in which their parents and grandparents grew up decades ago.” ..Moreover, technological changes have given parents the ability to decide which programs they will permit their children to watch. Every television, 13 inches or larger, sold in the United States since January 2000 contains a V-chip, which allows parents to block programs based on a standardized rating system. 47 U.S.C. § 303(x). Moreover, since June 11, 2009, when the United States made the transition to digital television, anyone using a digital converter box also has access to a V-chip. CSVA Report, 24 F.C.C. Rcd. 11413, at ¶ 11. In short, there now exists a way to block programs that contain indecent speech in a way that was not possible in 1978. In fact, the existence of technology that allowed for household-by-household blocking of “unwanted” cable channels was one of the principle distinctions between cable television and broadcast media drawn by the Supreme Court in Playboy… 06-1760-ag(L), 06-2750-ag (Con.), 06-5358-ag (Con.) Fox Television Stations, Inc. v. FCC

The themes of vagueness, undue strictness, the failure to adequately paste over all forms of expression, and the contention that regulators are failing to wrap technological change into their own content policies reverberate up here, north of the border.

“Fleeting regulators” should be taking notes.


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