Kerr & Wagstaffe: First Amendment Issues Remain Controversial

As the FCC continues to fight the battle against "indecent" broadcasts, major networks claim that the organization is imposing on free speech rights. Kerr & Wagstaffe, a law firm specializing in First Amendment issues, weighs in on this controver

The Federal Communications Commission has a longstanding history of challenging the subject matter that major networks broadcast, and that fight continues today. Over the past few decades, the FCC has made headlines for its reactions to shock jock radio hosts, NYPD Blue nudity and live broadcast slip-ups. According to a recent article from The Wall Street Journal, the U.S. Supreme Court has responded to claims made earlier this year that the FCC was abusing is power regarding the punishment of networks that air "indecent" broadcasts. While the article makes claims that the Supreme Court has slightly avoided a final say on the matter, Kerr & Wagstaffe-a California-based law firm-states that the reaction is one to be expected.

Although many representatives from the media industry have voiced their opinions that the FCC has impeded free-speech rights, Supreme Court Justices Anthony Kennedy and Antonin Scalia have upheld the organization's punishment of indecent broadcasts. The current debate stems from live broadcast incidents, including award shows, where vulgar language was televised. The attorneys at Kerr & Wagstaffe note that such events are not uncommon, as the law firm has successfully defended television networks through California's anti-SLAPP statute.

Broadcast networks, such as Fox Television Stations, argue that the FCC has drawn too distinct of a line between pay channels and those that are publicly broadcast. Although pay stations are held to less strict of requirements, there is also the question of how the FCC judges such content; the article notes that those fighting FCC punishments claim "artistic programs," such as documentaries, are allowed more leeway when airing "indecent" subject matter that would typically result in a hefty penalty for a live broadcast.

While major networks continue to fight these limitations, Justice Kennedy commented that the current indecency rules were "an important symbol for our society that we aspire to a culture that's not vulgar in a very small segment." The Supreme Court has not made an official ruling on whether the FCC's regulations are constitutional but has stated that the organization should provide networks with "fair notice prior to the broadcast in question that fleeting expletives and momentary nudity could be found actionably indecent."

Although The Wall Street Journal claims that The Supreme Court has failed to issue a concrete response to FCC regulations, Ivo Labar, partner at Kerr & Wagstaffe, says such rulings are not atypical. He concludes, "This decision is another example of the Supreme Court's trend toward limiting government regulation of speech which is traditionally within the ambit of First Amendment protection."


Kerr & Wagstaffe is a San Francisco-based law firm that is known for its bold and well-prepared legal representation. The lawyers at Kerr & Wagstaffe are active in a long list of practice areas, including intellectual property rights, patent cases, and constitutional law. Together, the attorneys at Kerr & Wagstaffe have worked on a number of landmark cases, some of which have been controversial and of incredible import within their field. Additionally, Kerr & Wagstaffe helps its clients face more common legal battles with confidence.