Never one to let a sleeping dog lie, I had to keep poking around about the CleanFlicks ruling from last week. I had stated that CleanFlicks was not engaged in any activity that the government doesn’t mandate for broadcasters, and wondered what the ramifications might be.
I had an e-mail discussion with a colleague who is a telecom lawyer and, as it turns out, he had some thoughts. I won’t copy the comments verbatim, but summarize the discussion.
My question had been whether this would free up the broadcasters to challenge the FCC guidelines that require the editing of movies for television. His reply indicates their are some avenues for a challenge to the FCC, but not by the broadcasters.
First, he clarified my misunderstanding of the FCC decency laws and pointed out the FCC does not require sanitization of films, but rather prohibits the broadcast of indecent material before 10pm. If the broadcaster edits a movie for television broadcast, they do so at the risk of offending the producers. Since all the FCC regulates is a prohibition against showing material, not requiring editing or even suggesting it, government skates away clean. As long as the producer allows the editing, the broadcaster is fine.
The producers, he argues, may actually have a first amendment claim against the FCC for restricting the showing of their works as they were intended, but that was not addressed by the court.
I still find it odd that the producers were willing to go to bat against CleanFlicks, while allowing broadcasters to make roughly the same edits, but that’s another discussion.