More than a year ago, when the Supreme Court upheld the FCC’s authority to fineFox Television Stations for “fleeting expletives” uttered by Bono and others, we noted that the court made only a technical ruling and some of the opinions were sympathetic to Fox’s position on the underlying and more important First Amendment question: was the rule the FCC applied too vague, capricious, and uncertain so that it chilled speech? Technology has changed, we noted, and perhaps it is time for the rules to change too, since they were always premised on an argument that television and radio were exceptional technologies, by comparison with books, for example.
The case went back to the lower court, which took up the constitutional question, and ruled against the FCC. (New York Times story.) The judge in the case made a number of correct observations–why should the standards be different for cable TV than for broadcast TV, for example. She did not rule out the possibility of the FCC adopting rules that would be constitutional, and noted that she was bound by the Supreme Court’s 1978 Pacifica decision which made that FCC authority clear. But for the moment, the networks can relax a bit about prosecution for the occasional cuss out of the blue — for example, the one in a discussion of Middle East policy that was spoken by a US President to a British Prime Minister, and which the broadcast networks had to bleep out.
It will be interesting to see what the government does now. It could appeal, but the case seems like a loser, and an appeal all the way to the Supreme Court could backfire, since Justice Thomas signaled that there may well be five votes for overturning Pacifica and costing the government all of its regulatory authority over televised speech.
In other speech control news:
A judge in Pennsylvania signed an order, drafted by a defense attorney, requiring newspapers to expunge their archives of all mention of the defendants’ arrest. The defense attorney actually has part of the logic right: “What’s the sense in having your record expunged if anyone can Google you and it comes up?” He’s right that expungement orders have been blown to bits. He’s just wrong that the way to fix that problem is retroactive censorship of the printed word. It’s a problem that can’t really be fixed, in the U.S. anyway. What was this judge thinking?
Also, a couple of notes on anonymity. I was reading Richard Clarke’s book Cyber War, which makes a compelling case for a more controlled version of the Internet by riding roughshod over civil liberties concerns. Having described the Internet as basically a hippie invention (“the Internet as we know it today is deeply imbued with the sensibilities and campus politics of [the 1960s]“), Clarke scornfully distances himself from any respect for anonymous speech, or reading.
The “open Internet” people believe that if you wish to read The Communist Manifesto, or research treatments for venereal disease, or document China’s human rights violations, or watch porn online, your access to that information will not be free if anyone knows that you are looking at it.
So much not just for Vint Cerf, but for the professional and legal standards governing libraries in most states in the U.S. He comes off sounding just like the Chinese government in its latest “explanation” about how it will control the Internet. “We will make the Internet real name system a reality as soon as possible,” a Chinese official said recently, referring to a requirement that Chinese will in the future have to use their actual names in all Internet communications, no anonymous postings or emails allowed. Just what Clarke would like to see happen here.