Scott R. Flick, at Pillsbury, Winthrop, Shaw, Pittman, writes about the FCC’s Notice of Apparent Liability for Forfeiture against CBS’s popular sitcom Young Sheldon, issued September 9. Why did the FCC come down on CBS? on the episode “A Mother, a Child, and a Blue Man’s Backside,” broadcast April 12, 2018.
During the episode, the show aired a simulated Emergency Alert System warning, which the FCC notes is prohibited by 47 CFR 11.45 (Prohibition of false or deceptive EAS transmissions).
(a) No person may transmit or cause to transmit the EAS codes or Attention Signal, or a recording or simulation thereof, in any circumstance other than in an actual National, State or Local Area emergency or authorized test of the EAS; or as specified in §§ 10.520(d), 11.46, and 11.61 of this chapter.
(b) No later than twenty-four (24) hours of an EAS Participant’s discovery (i.e., actual knowledge) that it has transmitted or otherwise sent a false alert to the public, the EAS Participant send an email to the Commission at the FCC Ops Center at FCCOPS@fcc.gov, informing the Commission of the event and of any details that the EAS Participant may have concerning the event.
As Mr. Flick writes, “The FCC is effectively claiming that CBS falsely yelled “fire” in a crowded theater, which is the well-established exception to First Amendment protections. CBS, on the other hand, is countering that it only yelled “boogeyman”, and that any reasonable viewer isn’t going to panic, because the public knows the difference between real and fictional things.” He notes that the purpose of the airing of the EAS tone is actually part of the storyline, and CBS could reasonably argue that the story has educational value.
I do have a quibble with the post. Mr. Flick says, “For students of the First Amendment, the part that first catches the eye is the absolutism of the Commission’s decision. Only very rarely does the First Amendment permit blanket bans on particular speech in all circumstances. While you may be prosecuted for yelling “fire” in a crowded theater, you can, for example, say it if you are in command of a firing squad.” Justice Holmes’s phrase in Schenck v. United States (249 U.S. 47, (1919)) was “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” (Schenck, at 52). I would suggest that a more appropriate comparison would be that you can, for example, say it if there really is a fire in that crowded theater. The purpose would be to get people out (although you wouldn’t want them to trample one another on the way). The concern for Holmes is both the falsity and the venue. Similarly for the FCC in the Young Sheldon case, the concern is the falsity and the venue.