Wednesday, April 29, 2009

SUPREME COURT HURTS SMALL STATIONS WITH 'FLEETING EXPLETIVE' RULING

Don't Tase Me Bro' - Apparently, one of the big arguments against banning "fleeting expletives" has been that it's expensive for small stations (in particular) to do this on a real-time basis; Scalia argues that it's now cheap enough not to be an issue.

Justice Breyer, who wrote the main dissenting opinion, disagreed. Although he confessed ignorance "about the prevalence of vulgarity in small towns," Breyer did point to one station manager's testimony to the FCC as evidence that a ban on fleeting expletives could decimate small time, live coverage of news and events.

"As one local station manager told the FCC, 'to lessen the risk posed by the new legal framework. . . I have directed [the station's] news staff that [our station] may no longer provide live, direct-to-air coverage of 'live events where crowds are present. . . unless they affect matters of public safety or convenĀ­ience. Thus, news coverage by [my station] of live events where crowds are present essentially will be limited to civil emergencies.'"

In Breyer's view, "the Federal Communications Commission failed adequately to explain why it changed its indecency policy from a policy permitting a single 'fleeting use' of an expletive, to a policy that made no such exception."

Breyer sees an obvious difference between the Carlin routine ("a monologue that deliberately and repeatedly uttered the expletives here at issue more than 100 times in one hour at a time of day when children were likely to hear the broadcast") and fleeting expletives, but Justices Thomas, Scalia, Roberts, Alito, and Kennedy disagreed. TV stations now drop the F-bomb only at their peril. "A safe haven for families" or a First Amendment killer?

Although the ruling against Fox was made under Republican Kevin Martin, acting FCC head Michael Copps (a Democrat) praised today's decision as "a big win for families.". . .

Andrew Jay Schwartzman, head of the Media Access Project, called the ruling "extremely disappointing. We remain hopeful that the FCC's restrictive policies will ultimately be declared unconstitutional, but there will be several more years of uncertainty, and impaired artistic expression, while the lower courts address the First Amendment issues which the Court chose not to confront today."

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