It’s bizarre to watch the Supreme Court’s decision in its fleeting obscenities case today get reported as some sort of victory for broadcasters. Yes, the court, in a decision written by Anthony Kennedy, voided three Federal Communications Commissions decisions against Fox and ABC, declaring that the FCC hadn’t given the networks proper prior notice that the things they broadcast—two incidences of expletives spoken, unscripted, by stars during awards broadcasts and seven seconds of female nudity from behind—could be considered obscene. It’s a nice reprieve for Fox and ABC, but the Court decided it didn’t need to address the First Amendment issues involved. The does nothing to change what networks can broadcast or the FCC’s general ability to determine what’s obscene. As the Parents Television Council pointed out in a statement on the ruling, there are 1.5 million pending indecency cases that the FCC, because it did give proper prior notice to those broadcasters, is now free to rule on.

But the decision does reveal how capriciously the FCC behaved during the period when these penalties were assessed.

“The Govern­ment argues instead that ABC had notice that the scene in NYPD Blue would be considered indecent in light of a 1960 decision where the Commission declared that the ‘televising of nudes might well raise a serious question of programming contrary to 18 U. S. C. §1464.’,” Kennedy explained. “An isolated and ambiguous statement from a 1960 Commission decision does not suffice for the fair notice required when the Government intends to impose over a $1 million fine for allegedly im­permissible speech.” Well, no kidding, but it’s amazing that the commission was brazen enough to think that would cut it. Particularly given, as Kennedy notes, “a Commission ruling prior to the airing
of the NYPD Blue episode had deemed 30 seconds of nude buttocks ‘very brief’ and not actionably indecent in the context of the broadcast.” That the Commission didn’t acknowledge that is testament to either sloppy work and ignorance of its own precedents, or a conviction that the FCC can dramatically change tack at will.

That isn’t to say that new commissioners won’t be more rigorous and less capricious. But Kennedy did insist that “There is no need, however, for an agency to provide de­tailed justifications for every change or to show that the reasons for the new policy are better than the reasons for the old one.” It’s a sentiment that should unnerve both decency advocates and those of us who’d like to see more creative freedom for television writers.

In the meantime, I’d love to see more shows do what Parks and Recreation and Southland do: write dialogue that reflects how adults actually speak to each other in times of stress and excitement and pain and love, and bleep as necessary. It’s a workaround that avoids the—oh, the horror—prospect of expanding a child’s vocabulary in an instant, while acknowledging the adulthood of the target audience—and it’s a nice little rebuke visual rebuke to the confused standards we have today, a reminder that the FCC thinks the sight of Leslie Knope uttering the occasional obscenity is a threat.

Most of the debates about government involvement in the arts center around funding questions. But there are, of course, other ways that government can influence what art gets created and what it looks like other than providing funding for it. Among them is the Children’s Television Act of 1990, which says that if broadcasters provide three hours of educational and informational programming for children every week, they can get their license renewal applications expedited when they come up for review. And according to a new Government Accountability Office report, some parents’ groups have tried to use that regulatory incentive to push stations to change their programming:

In a still pending case from 2004, a group filed a petition to deny the license renewal of a broadcast station operating in the Washington, D.C., area. In the petition to deny, the group cited a children’s media expert’s analysis of a program shown on the broadcast station. The expert noted that the program, designated as core children’s programming, had “no palpable message, lessons, or curriculum at even the most modest level of depth that would contribute to a child’s positive development in any sense.

Some child advocacy groups have raised concerns regarding the quality of core children’s programming content, generally stating that the content of these programs is neither educational nor informational. For example, one group reviewed 90 episodes of core children’s programming and used a variety of criteria—including the clarity of the lesson presented and its applicability to the real world—to determine the quality of those episodes. According to the study, the group determined that the vast majority of the episodes it reviewed (86 percent) were either minimally or moderately educational; only 13 percent were deemed highly educational. The same study noted that the percentage of core children’s programs that it considers to be highly educational fell over a 10-year period (from the 1997-1998 season to the 2007-2008 season), from 29 percent of core children’s programs to 13 percent of core children’s programs. Another study examining the quality of children’s television programs, which used a different set of criteria to judge program quality, determined about 60 percent of programs were of moderate or low quality, with the remaining roughly 40 percent being of high quality…Parents in our focus groups believed that there should be independent standards or oversight and that station involvement in designating core children’s programming represented a conflict of interest.

If we’ve already reached the point where we’ve decided that children’s television with a minimum of advertising is enough of a public good that we provide regulatory incentives for its production to make up for turning it into a less productive enterprise, I guess it’s hard to say that quality concerns shouldn’t be part of the consideration. But it’s not particularly clear that figuring out what makes for good television programming is something the federal government’s exceptionally good at. You could set standards similar to the ones about the amount of advertising that can air in an hour that say a certain percentage of any given show has to be dedicated to straightforward instruction on math and reading skills (or whatever core curriculum elements seem age-appropriate).

But then you get into questions of efficacy: are kids actually going to be engaged and end up learning things if they’re stuck in front of a screen getting what’s essentially classroom instruction, even if the classroom instructor is a friendly aardvark? How applicable to the real world does a lesson have to be? Would a fantasy series that also happened to teach kids about, I don’t know, monetary policy, like Tamora Pierce’s Provost’s Dog series apply if it teaches that lesson in a world where criminals have ready access to the monetary supply? There are a million wormholes for us to jump down here. And there may be market failures. The report notes that “parents in many of our focus groups perceived a gap in the programming available for children of certain ages. Our trend analysis showed that children’s programming is available for a wide range of age groups, but parents in eight of the 10 focus groups we conducted raised the issue of a lack of programming appropriate for school-aged children,” especially since PBS focuses on children under the age of 10. But if the regulations we have already aren’t producing the kind of programming parents want for their children, I’m not actually sure more extensive application of regulatory authority will help.