Justices Are Split on Broadcast "Indecency"
(January 11, 2012) - Yesterday's long-awaited Supreme Court argument on the constitutionality of the Federal Communications Commission's rule against "indecency" on the airwaves was rocky and inconclusive. Despite high hopes of many observers that the Court will finally strike down this anomalous policy of government censorship, only two justices - Ruth Bader Ginsburg and Elena Kagan - expressed First Amendment concerns, and the two lawyers representing the broadcast industry mainly focused their arguments on ways that the Court could rule for their clients while leaving the indecency regime intact.
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An even more striking pro-censorship argument came from Justice Antonin Scalia, who six months ago wrote a strong First Amendment opinion for the Court invalidating a California law that restricted minors' access to violent video games. Scalia expressed his support for continuing government censorship of the airwaves not based on any constitutional rationale or showing of harm to minors, but on "symbolism." After Justice Anthony Kennedy rephrased Solicitor General Donald Verrilli's argument "that there is a public value in having a particular segment of the media with different standards than other segments," Scalia said:
Sign me up as supporting Justice Kennedy's notion that this has a symbolic value, just as we require a certain modicum of dress for the people that attend this Court and the people that attend other federal courts. Â… These are public airwaves, the government is entitled to insist upon a certain modicum of decency. I'm not sure it even has to relate to juveniles, to tell you the truth.
It was a remarkable statement, especially from a justice who only six months before had writtten that “government has no power to restrict expression because of its message, its ideas, its subject matter, or its content”; but it also reflected a political truth: FCC censorship does nothing to protect or educate children, but it does send an essentially symbolic message of government disapproval. The fact that only 10% of the population still accesses broadcast TV over the airwaves rather than through a cable only undermines the shrinking impact of FCC censorship on the overall media landscape.