<< The ABA and Judicial Vacancies | Main | News Scan >>


It's not so $%*&ing simple

| 0 Comments
Some years back, Nicole Richie was in a TV show (which I never watched*) called The Simple Life.  Two spoiled rich girls do the Green Acres bit and go live in the country.  So on the 2003 Billboard Music Awards, she said, "Why do they even call it The Simple Life? Have you ever tried to get cow @#*& out of a Prada purse? It's not so $%*&ing simple."

The question of whether it violates the First Amendment for the FCC to punish the broadcaster for this made its way for the second time to the Supreme Court.

What's the answer?  It's not so $%*&ing simple. 

So the Court ducked the First Amendment question and decided on the due process ground that the broadcasters had not received sufficient notice of the standards to be applied.
It is necessary to make three observations about the scope of this decision. First, because the Court resolves these cases on fair notice grounds under the Due Process Clause, it need not address the First Amendment implications of the Commission's indecency policy. It is argued that this Court's ruling in Pacifica (and the less rigorous standard of scrutiny it provided for the regulation of broadcasters, see 438 U. S. 726) should be overruled because the rationale of that case has been overtaken by technological change and the wide availability of multiple other choices for listeners and viewers. See, e.g., ABC Brief 48-57; Brief for Respondent Fox Television Stations,Inc., et al. 15-26. The Government for its part maintains that when it licenses a conventional broadcast spectrum,the public may assume that the Government has its own interest in setting certain standards. See Brief for Petitioners 40-53. These arguments need not be addressed here. In light of the Court's holding that the Commission's policy failed to provide fair notice it is unnecessary to reconsider Pacifica at this time.

* And I am apparently not the only one who never watched the show.  The opinion of the Court refers to Ms. Richie as "a person named Nicole Richie."  (Slip op. at 6.)

Leave a comment

Monthly Archives