Freedom of speech, assembly, and the press 129In 2009, the Supreme Court addressed an area of the law that it had not touched
for more than 30 years: regulating vulgar language that does not rise to the level
of obscenity on broadcast television and radio (but not on cable or other paid-
subscription services, which are not regulated as to language). In 1978, the Court
ruled that the Federal Communications Commission (FCC) had the power to
regulate indecent language, but the FCC had always interpreted that power to only
cover repeated use of vulgar words.^99 However, after the use of vulgar words by
Bono during the 2003 Golden Globe Awards and by Cher and Nicole Richie during
the 2002 and 2003 Billboard Music Awards, the FCC announced that it would no
longer tolerate even “isolated uses of sexual and excretory words.”
Fox Television challenged this new rule, but in 2009 the Supreme Court upheld
the FCC’s ban on “fleeting expletives” as “entirely rational” under existing law. (Its
opinion also took a swipe at the “foul-mouthed glitteratae from Hollywood.”)^100 The
Court also ruled the following week that the FCC had not acted capriciously in fining
CBS $550,000 for Janet Jackson’s infamous “wardrobe malfunction” at the 2004 Super
Bowl.^101 However, after sending the cases back to the lower courts and another round
of appeals, the Supreme Court ruled that the regulations were unconstitutionally
vague and the networks could not be fined. The Court also let stand a lower-court
ruling that voided the fine against CBS on similar grounds.^102 But the Court did not
address the broader constitutional questions, so the regulation still stands; stronger
First Amendment protections for broadcast radio and television will have to come from
future cases.
Two more recent cases made clear that violence in published material cannot
be regulated in the same way as sexual content. In 2010, the Court struck down a
federal law that criminalized depictions “in which a living animal is intentionally
maimed, mutilated, tortured, wounded, or killed.” The law focused on “crush
videos,” which show the torture and killing of helpless animals, but also included
dog fighting and other forms of animal cruelty. In striking down the law, the
Court said the First Amendment protected such depictions, even if the underlying
behavior itself could be illegal.^103 In 2011, the Court struck down a California law
that banned the sale of violent video games to children, saying: “Like the protected
books, plays and movies that preceded them, video games communicate ideas—and
even social messages—through many familiar literary devices (such as characters,
dialogue, plot and music) and through features distinctive to the medium (such
as the player’s interaction with the virtual world). That suffices to confer First
Amendment protection.”^104“Why
Should
I Care?”
Even if you are not a journalist, do not engage in political protest, or do not
contribute to political campaigns, the freedom of speech, the press, and assembly
still shapes the world around you. The “marketplace of ideas” ensures that
policies are debated and a range of voices can be heard. Our political leaders are
held accountable by the free exchange of ideas and a strong independent media
that can criticize their actions. Also, other areas of your everyday life that you
may not consider to be “speech,” such as video games, are protected by the First
Amendment. Having an understanding of the law is especially important when
the freedom of the press and free speech are regularly challenged in the
political world.Full_05_APT_64431_ch04_102-147.indd 129 16/11/18 1:30 PM