Such strong adult fare as Steven Spielberg’s “Saving Private Ryan” and “Schindler’s List” have been shown on prime-time network television unedited. Six months after the Sept. 11, 2001, terrorist attacks, CBS aired the documentary “9/11,” which followed a firefighting crew coincidentally being videotaped that day and accordingly contained multiple spontaneous F-words and other profanities. No fines were issued.
The apparent hypocrisy wasn’t lost on Justice Elena Kagan, who joked Tuesday that the FCC policy is “Nobody can use dirty words or nudity, except Steven Spielberg.”
But it won’t be individual incidents that ultimately sway the justices. Indeed, Justice Samuel Anthony Alito Jr. said Tuesday that technological advances may make current FCC rules obsolete, since nearly 90 percent of households now have cable or satellite television, enabling them to easily surf between regulated network stations and unregulated cable channels.
“I’m sure your clients will continue to make billions of dollars on their programs which are transmitted by cable and by satellite and by Internet,” he told the lawyers representing the TV networks. “But to the extent they are making money from people who are using rabbit ears, that is disappearing.”
Nathan Siegel, a First Amendment lawyer and law professor at the University of Maryland, said the initial rationale for FCC regulation was that the airwaves are public property and needed to be regulated as a public utility.
“These are not new questions. The reason the courts have [in the past] decided it’s OK to continue government regulations was because there were really no other alternatives for people to watch at the time. Those realities … don’t exist anymore,” he said.
Mr. Siegel also said that, such legal rationales aside, regulating such a small segment of TV offerings, as Chief Justice Roberts and social conservatives note when they argue that the restrictions are not onerous, is simply irrational.
“There are multiple ways that people can get content. Does it make any sense to give the FCC the exclusive power to regulate only broadcast programming when nothing else is regulated?” he asked.
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Ben Wolfgang is a national reporter for The Washington Times. Before coming to the Times, he spent four years as a political reporter in Pennsylvania. His focus is on education and science policy. Ben lives in southeast D.C. and has played guitar in several bands while still in Pennsylvania. He can be reached at firstname.lastname@example.org.
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