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On June 21st, the Supreme Court blinked. It used a legal technicality to sidestep determining the status of two long-simmering “indecency” cases and, thus, the legal status of broadcast television and radio, the traditional mass communications media.

One case involves the spoken word and was against Fox over what are known as “fleeting expletives,” words like “fuck” and “shit” uttered by Cher, Nicole Richie and Bono at the Billboard Music Awards in 2002 and 2003. The second was against ABC for showing what can be called “fleeting nudity,” the brief display of a female actress’ nude buttocks during an episode of NYPD Blue.

Under FCC regulations, it is a violation to air obscene programming at any time. The FCC defines indecency as “material that describes or depicts sexual or excretory material.” In addition, it is a violation to air such programming between the hours of 6 a.m. and 10 p.m.

Over the last decade, federal courts have repeatedly struck down Republican- and Democratic-administration efforts to block sexually explicit, post-modern “speech.” In 2010, a federal appeals court threw out the FCC’s $550,000 fine against CBS for showing Janet Jackson’s now infamous “wardrobe malfunction,” during which she momentarily displayed her nipple to hundred of millions of viewers of the 2004 Super Bowl halftime show; the FCC requested the Supreme Court reconsider the lower court’s January 2012 ruling. If the Court takes up this case, the issue of indecency over broadcast media might finally be addressed.

Now, a decade after the original incidents that sparked the Fox and ABC cases, the television landscape has profoundly changed.  When the incidents occurred, broadcast TV was being restructured by cable TV that not only offered conventional broadcast programming channels but an ever-growing number of basic and premium channels. More significant, cable TV was unregulated, artfully exempt from FCC oversight.

The explosive growth of Internet-based video services only further erodes the once-dominant role of broadcast TV. The FCC mandated TV conversion from analog to digital for June 2009, anticipating the powerful role that new online and wireless video services would exercise. Some estimates place conventional “over the air” TV viewers at less than 10 percent of all households.

In the now celebrated 1997 decision Reno v. ACLU, the Court invalidated provisions of the Communications Decency Act of 1996 that criminalized “indecent” and “patently offensive” forms of Internet communication. The suit, originally brought by the American Library Association, objected to federal efforts to restrict adult access to online content on the basis that the materials might be harmful to children. The ruling affirmed the right of adults to access their content of choice, but acknowledged “the governmental interest in protecting children from harmful materials” and permitted the use of anti-porn filters in libraries and schools where children were most likely to publicly access the net. Thus, child pornography and pedophilia set one boundary of permissible “speech” in the digital, online 21st century.

At some date in the not-so-distant future, the Court will directly address the issue of indecent “speech” carried by broadcasters, even if only for “fleeting” representations. If current regulations are maintained, it may signal the federal government’s last-gasp effort to police the public airways. If the Court holds broadcasters to a higher standard then cable and Internet video “channels,” it indicates that the judges are still living in the 20th century. If they use the Internet, let alone an iPhone or Android smartphone, something else might be possible. Stay tuned.

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David Rosen is a writer and business-development consultant. He is author of the indie classic Off-Hollywood: The Making & Marketing of Independent Films (Grove), originally commissioned by the Sundance Institute and the Independent Feature Project. He can be reached at drosennyc@verizon.net. For more information, check out www.DavidRosenWrites.com and www.DavidRosenConsultants.com.

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