Supreme Court Case May Affect Sports Broadcasts

The United States Supreme Court will hear a case that could affect television sports broadcasts across the nation.  In FCC v. Fox Television Stations, No. 10-1293, the Supreme Court will consider the case of swearing and nudity on television in a claim brought by Fox against the government.

Anyone who watched the Super Bowl in 2004, remembers Janet Jackson's "wardrobe malfunction."  Anyone who happened to watch the Pitt vs. Notre Dame game in the same year remembers Tyler Palko dropping the "F-Bomb" on national television.

Should broadcast television stations like NBC, Fox, ABC or CBS be fined by the FCC for seemingly random events?  In its 2011-2012 session, the Supreme Court will tell us exactly where it stands on First Amendment Rights to Free Speech versus FCC limitations on that same speech.

The Current Law

To understand how the Supreme Court will rule in this case, one has to understand the current law.  It's likely the Supreme Court will look to the law as it applies to public forums.

What is a public forum?  Public forums are any place owned by the government, like schools, streets, sidewalks, military bases, jails, etc.

Most people know they can't walk into a military base or prison and start protesting, but they do know that they can walk on the sidewalk and protest.  Ultimately, there must be Constitutionally accepted limits to free speech, but where is that line?

Without going into too much boring detail, the Supreme Court has designated three types of public forums for speech—the public forum, the limited public forum and the non-public forum. 

The public forum is your street, park or sidewalk.  If the government is going to restrict your speech or right to protest, it better have a very good reason for doing so, and it must apply that limitation evenly without regard to the viewpoint of the protester or speech giver.  A good example of a limitation is "no protesting after 10 p.m.," because the government has an interest in allowing residents to sleep.

A limited public forum is one which is open to limited debate, like a municipal building or a school gymnasium.  It may limit speech in content or scope, but again, its limits must be within the bounds of the Constitution.  In these locations speech may be limited to the topic presented at a meeting or to school activities in the gym.

Finally, a non-public forum is one in which speech can be limited based on content of the speech, but not viewpoint.  Non-public forums include military bases, jails and public schools.  A student cannot shout expletives in the middle of the classroom, nor can a soldier undermine his commanding officer.

It's somewhere in these three areas that the Supreme Court will make a determination about the effects of speech on broadcast television.

Anticipating the Law

Fox Television Stations is arguing that the FCC has overstepped its bounds by limiting expletives uttered by excited athletes or celebrities.  It's also arguing that partial nudity on shows like NYPD Blue should be acceptable.

What the Supreme Court will have to consider is whether broadcast television is considered a public or private forum.  If it's a private forum, broadcast television stations will have free reign on their speech.  This is highly unlikely, however, since the Supreme Court will consider these airwaves historically public, therefore, open to government limitation.

Next, the Supreme Court will have to consider whether the FCC's "time, place and manner" restrictions are rational, or compatible, with the time and place in which the restricted offenses may occur.

Is it compatible with our social norms to allow nudity in primetime television, or to allow expletives uttered by celebrities during peak viewing times?

Legal Conclusion

The Court will come down on the side of the FCC.  What's irrational is the fact that broadcast television won't use a seven-second delay when showing live events where excited statements or other random occurrences can happen. 

Additionally, any argument that nudity is required as a part of the free artistic expression will fall flat before the Supreme Court.  The Justices know very well that art can be achieved without exposing younger viewers to graphic sexual encounters.

In a hybrid situation like Janet Jackson's "wardrobe malfunction," the Supreme Court will rule that Fox is responsible for its failure to have reasonable measures in place to prevent the reasonably prohibited nudity. 

Similarly, one can analogize Jackson's issue with that of a random streaker.  Streaking is commonplace, so it's not unreasonable to have protective measures in place to prevent younger viewers from exposure to the streaker's potential nudity.

Broadcast airways are a limited public forum.  The government has an interest in protecting its younger viewers, so the Supreme Court will rule that the FCC's limitations are reasonable.  What does that mean?  Fans seeking a little extra excitement from an athlete's slip-of-the-tongue will have to flip to cable television to hear their athletes in the raw.

For broadcast television, this is not to say they don't have a remedy.  They may have a lawsuit against the person who forced them to get fined.  But, that's an argument for another day...