When I teach about the regulation of ‘standards’ in broadcasting, I tend to start with ‘that’ clip from the Super Bowl in 2004. Over time, fewer know from the start how it’s going to end, but for me, it’s turning into the case that will always be with us! I suppose for some, it’s our version of George Carlin’s Seven Dirty Words (although give me Carlin any day). But this week, there have been two important developments, in the US and the UK, that do move these debates on a little. (The actual Super Bowl case, which is CBS v FCC, is itself still on the go, and will certainly be affected by one of this week’s decisions).
Starting closer to home, though,(and with much less discussion as far as I’ve found) we have the High Court decision in Gaunt v Ofcom  EWHC 1756 (QB). This decision has (to use a cliché) been ‘eagerly awaited’ by those interested in media regulation as well as free speech issues in general. Jon Gaunt, then of TalkSport, brought the case (with the support of Liberty), to challenge an adverse finding of Ofcom under the Communications Act 2003 and the Broadcasting Code regarding Gaunt’s interview with Redbridge councillor Michael Stark (or as Gaunt put it, a ‘Nazi’ or a ‘health Nazi’). The challenge wasn’t to the Code, but to the decision regarding Gaunt (who was able to establish standing, although the original decision was – in formal terms – directed at TalkSport as the responsible broadcaster), and the basis for the challenge was article 10 of the European Convention on Human Rights, through the UK’s Human Rights Act. Indeed, a wide range of ECHR decisions were presented, particularly on Gaunt’s side. Ofcom’s argument included the special position of broadcasting, the regulatory role of Ofcom which takes Convention rights into account, and an attempt to relocate the debate away from political speech territory due to the gratuitous abuse that Gaunt was said to have been delivering. The actual discussion by the court is very short, and while it is accepted that article 10 has a role to play (key phrase: ‘we regard “generally accepted standards” in this context as elusive, and the concept of harmful and/or offensive material needs to be moderated in the light of Article 10 and the domestic and Strasbourg case law‘) and that the Court needs to engage in its own analysis of the matter, there is ultimately no problem: ‘the essential point is that, the offensive and abusive nature of the broadcast was gratuitous, having no factual content or justification‘.
Now on one hand, it was somewhat encouraging to see that the High Court would have a chance to say something about broadcast regulation. In that context, it’s fair enough that some (such as the comprehensive Media Blog) would see the decision as ultimately supportive of the British approach to impartiality. I’m not sure that I’m seeing this, though (and I do have good things to say about impartiality regulation in the licensed broadcast sector) – there is not very much in the operative parts of the judgement regarding broader principles, and in the end it seems that the issue was a failure to persuade the court of the value of the speech, rather than a principle regarding the role of regulation that will affect other areas. Within those terms, then, the decision remains unfulfilling, as the disposition makes little attempt to engage with the Strasbourg jurisprudence discussed in earlier paragraphs, and introduces what seems like a new sort of test for what is political speech without really explaining the distinction between political and other speech. Some reports hail the definition of some of Gaunt’s comments as political as some sort of victory for him. I disagree – this is not much of a victory, and the test remains unclear in any event.
Anyway, over to the wonderful world of the FCC, where the decision in FCC v Fox (PDF) does appear to have something very important to say about broadcast regulation and the ongoing life of the 1978 Pacifica decision, FCC v Pacifica 438 US 726, about those seven words mentioned in the introduction to this post. This case has already been up to the Supreme Court (coverage here), which found in favour of the FCC on the administrative law ground, but sent the matter back down without resolving the First Amendment issue. It’s a challenge to a series of FCC decisions regarding the broadcast of one-off dangerous words such as shit (as uttered by the Ms. Ritchie of this blog’s title). This week’s decision is thus the First Amendment one, and the answer is that the court favours the Fox position and finds the FCC’s current policy on ‘fleeting expletives’ being indecent (and profane too, don’t you know?) unconstitutional on the grounds of its vagueness, with some further comments on the chilling effect of the FCC’s approach. The latter section is loaded with examples and is extremely well argued, concluding that “sex and the magnetic power of sexual attraction are surely among the most predominant themes in the study of humanity since the Trojan War [and] the digestive system and excretion are also important areas of human attention […] to place any discussion of these vast topics at the broadcaster’s peril has the effect of promoting wide self-censorship of valuable material which should be completely protected under the First Amendment“.
One point of note is that the Court would (if it could) depart from Pacifica and apply strict scrutiny to broadcast television. This is well-reported – but not the reasons for such, which rely in great part on the existence of the V-chip. This does sting a little – I think that there are problems with Pacifica, but the existence of this stupid required technology (most brilliantly parodied in the South Park movie) as the cause for such feels a little strange. There’s also some very revealing phrasing from the head of the FCC as quoted in the New York Times: the agency will be “reviewing the court’s decision in light of our commitment to protect children, empower parents, and uphold the First Amendment”. Interesting order of commitments there. But generally speaking, a big change in the regulation debate in the US, which is more than we can say for the UK after the Gaunt case.