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Think Again: The Quest to Save Red Lion

SOURCE: AP/Joe Cavaretta

During the 2003 Billboard Music Awards, which were broadcast on Fox, Nicole Richie (right) made a profane statement that led the FCC to declare the broadcast indecent. Fox's lawyers have decided to challenge the FCC's authority to regulate "fleeting expletives."

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“Have you ever tried to get cow sh** out of a Prada purse? It’s not so f***ing simple.”

Not many among us would have guessed that such an utterance—offered up by socialite Nicole Richie during a December 10, 2003 broadcast of the Billboard Music Awards on Fox—could ever lead to an argument within the hallowed chambers of the U. S. Supreme Court. But guess what? This coming autumn, the nine justices will don their robes and hear FCC v. Fox Television Stations to decide whether the government has the constitutional authority to “ban the broadcast of fleeting expletives,” or one-time uses of familiar, but profane words.

Fox wasn’t actually fined for the utterance, but the FCC declared the broadcast indecent—along with another Billboard show a year earlier where Cher let the f-word slip. The company’s lawyers decided this was an opportunity to challenge the constitutionality of the FCC’s “expanded enforcement of the indecency law.”

While many readers of this space may indeed welcome a rebuke to the FCC’s puritanical indecency penalties, such as the $550,000 fine levied on CBS for Janet Jackson’s “wardrobe malfunction” during the 2004 Super Bowl, this case has potentially significant implications beyond the simple enforcement of indecency rules. Several big broadcasters have filed friend-of-the-court briefs that, if successful, could gut much of the FCC’s laudable and necessary regulatory ability.

Remember the Fairness Doctrine? In Red Lion Broadcasting Co. v FCC, decided in 1969, Billy James Hargis’ Christian Crusade radio program on WGCB in Red Lion, Pennsylvania, hosted a discussion about a new book by Fred J. Cook called, Goldwater: Extremist on the Right. Hargis trashed Cook during the discussion—he said Cook had been fired by a newspaper for making false charges against city officials, had worked for a Communist publication, had defended Alger Hiss and attacked J. Edgar Hoover and the Central Intelligence Agency, and that he had now written a “book to smear and destroy Barry Goldwater.”

Cook demanded free radio time to respond to the accusations, and was sent a WGCB rae card in return. Cook sued the station, and the case eventually reached the Supreme Court, which ruled unanimously in favor of Cook. Justice Byron White, writing for the Court, reasoned that restricting broadcast media’s editorial independence via the fairness doctrine would “enhance rather than abridge the freedoms of speech and press.”

Justice White emphasized the technological scarcity of broadcast frequencies as the rationale for the FCC’s enforcement of the fairness doctrine. A very small number of frequencies exist in any given area, and the number of people who want broadcast licenses is almost invariably more than what can be doled out. When one gets a broadcast license, White argued, “the licensee has no constitutional right to be the one who holds the license or to monopolize a radio frequency to the exclusion of his fellow citizens. There is nothing in the First Amendment which prevents the Government from requiring a licensee to share his frequency with others and to conduct himself as a proxy or fiduciary with obligations to present those views and voices which are representative of his community and which would otherwise, by necessity, be barred from the airwaves.”

White went on: “It is the right of the viewers and listeners, not the right of the broadcasters, which is paramount. It is the purpose of the First Amendment to preserve an uninhibited market-place of ideas in which truth will ultimately prevail, rather than to countenance monopolization of that market, whether it be by the Government itself or a private licensee.”

Ronald Reagan’s FCC chair Mark Fowler saw things differently and chipped away at the doctrine until it was finally abolished in 1987, paving the way for the right-wing takeover of almost all talk-radio. In What Liberal Media? I cited Edward Monks’ research, which estimated at the time that conservative commentators enjoyed a 4,000-hour to zero imbalance over liberals in the Eugene, Oregon area. He wrote in The Register-Guard that, “political opinions expressed on talk radio are approaching the level of uniformity that would normally be achieved only in a totalitarian society…. There is nothing fair, balanced, or democratic about it.”

That imbalance, and others almost as dramatic, would have been impossible if the Fairness Doctrine had not been abolished. Moreover, Red Lion’s central argument that the technological scarcity of broadcast frequencies compels the government to regulate them in the public interest has been one of the key legal rationales for the FCC’s regulatory ability since 1969. It has allowed, for example, laws such as the Children’s Television Act of 1990, which requires broadcasters to fulfill part of their duty as holders of public airwaves to broadcast at least three hours of educational children’s programming per week, and limits the advertisements that can be included in those shows.

But broadcasters are challenging this foundation in FCC v. Fox Television Station. They argue that technological advances have superceded Red Lion’s reasoning and that, for example, the V-Chip can do the job just as well. NBC Universal went so far as to argue that the justices should “reconsider its decision” in Red Lion, “the foundations of which…are moth-eaten.”

The Second Circuit Court of Appeals gave these complaints considerable weight, noting in passing that “technological advances may obviate the constitutional legitimacy of the FCC’s robust oversight.” And the FCC is paying attention. Commissioner Jonathan Adelstein has noted that, “[d]epending on how it decides, we may get some needed clarity regarding the scope of our authority.”

Six public interest groups have filed friend-of-the-court briefs asking the Court to either affirm Red Lion or leave it alone. “Of great importance . . . is that, whatever the outcome in this case, the Court continues to recognize the constitutional legitimacy of the FCC’s statutory public interest oversight of television broadcasters,” the groups wrote in their brief, “especially as they apply to promoting mentally healthy children and families.” Eleven more have also written a brief urging the Court not to even consider the Red Lion case or the underlying scarcity arguments.

If the Court does decide to gut Red Lion, it could weaken the FCC’s ability to enforce any broadcast standards at all. In recent cases, the Roberts Court has ruled in many cases in both sweeping and narrow fashion. In this case, the correct path is obvious: “Yes on shit in Nicole Ritchie’s purse; no on the end of broadcast regulation.”

Eric Alterman is a Senior Fellow at the Center for American Progress and a Distinguished Professor of English at Brooklyn College, and a professor of journalism at the CUNY Graduate School of Journalism. His blog, “Altercation,” appears at http://www.mediamatters.org/altercation. His seventh book, Why We’re Liberals: A Political Handbook for Post-Bush America, was recently published by Viking.

George Zornick is a New York-based writer.

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