Is FCC 'running wild' with its big fines for 'fleeting expletives'?

The ruling by the New York-based Second Circuit Court of Appeals, which sends the FCC back to the drawing board for its policy on "fleeting expletives" on broadcast television, has unexpectedly raised the hopes of First Amendment scholars and legal experts who would like to see less government regulation of the media.

"The FCC has been running wild with these huge fines," argues Fordham University's Paul Levinson, who says "any fines of any broadcaster communication is an obvious blatant violation of the First Amendment." Pointing to recent discussions in Congress to expand FCC authority to both cable and the Internet, the author of "New New Media" says that this breather in the lockstep march toward increased regulatory intrusion provides an opening for a broader debate. "What champions of the First Amendment who have been in despair over decades now hope is that this is the beginning of the turning of the tide towards more respect for the First Amendment," he says adding, "a week ago, before this ruling, I would have called that a pipe dream, but now it may not be."

Southwestern University School of Law professor Butler Shaffer take the argument one step further. "Get rid of it," he says, referring to the FCC. In this new media environment of virtually bottomless media outlets, he says, the argument that a government agency needs to be in the middle, directing traffic for scarce resources, is no longer valid. "How can you possibly argue that this is a limited resource when anyone who wants to can go on the Internet and broadcast?" he asks. As for the argument that licenses granted to broadcasters require them to act in the public interest because the airwaves belong to the public, he says the terms of that agreement are maddeningly vague. "What do those terms even mean?" asks Mr. Shaffer, adding that what is really going on is a struggle at the heart of our society over who shall control the future.