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FCC v. Fox draws intense interest

By Tony Mauro
First Amendment Center legal correspondent

WASHINGTON — As it comes before the Supreme Court, the case of Federal Communications Commission v. Fox Television Stations seems at first glance to raise mundane issues of administrative law, such as what justification a federal agency must offer when it changes its mind.

But when it is argued tomorrow morning, the debate is likely to veer quickly into the realm of the First Amendment and whether the change of mind at issue — the FCC's suddenly cracking down on the airing of unscripted, one-time “fleeting expletives” — violates the free speech of the nation’s broadcasters.

As a result, the case has gotten a lot more attention than a run-of-the-mill administrative-law case would get, along with a lot more friend-of-the-court briefs to supplement the views of the parties.

The 2nd U.S. Circuit Court of Appeals ruled in June 2007 that the FCC was “arbitrary and capricious” when it decided to cite the fleeting use of expletives in award shows and reality series by Bono, Cher and Nicole Richie in 2002 and 2003.

In its brief before the high court, the Bush administration argues that the FCC’s policy was justified by the Court’s 30-year-old FCC v. Pacifica Foundation ruling, which upheld the commission’s power to prohibit indecency in broadcasting, and to consider context in doing so.

“In any number of ways, the use of an expletive by, for example, a wiretapped organized-crime figure on a news program is far removed from the use of the same word in a dialogue on an awards show. There is no statutory reason why the FCC is compelled to treat such fundamentally different cases the same way,” wrote then-solicitor general Paul Clement, who has since been replaced by Gregory Garre, who will argue tomorrow.

Carter Phillips, who will argue on behalf of Fox and the other broadcasters involved, responds in his brief that the commission did in fact act arbitrarily in a way that was “profoundly chilling” on the rights of broadcasters. When constitutional rights are violated, he argues, the commission must offer more than a bare-minimum explanation for its new policy. “This is not a run-of-the-mill administrative law case,” Phillips writes. “The 800-pound gorilla in the corner of the room that petitioners choose to ignore is the First Amendment. The agency rule at issue here is not an economic regulation of widget manufacturing; it is a content-based restriction on protected speech.”

Phillips’ brief, by the way, uses the word “fuck” 30 times, and “shit” 23 times. The government brief uses them only three times, when it quotes from the actual broadcasts at issue, but it uses asterisks or euphemisms in all other mentions of the word. Those differences will be mirrored at oral argument, during which Phillips says he will use the real words unless otherwise instructed.

Here is a sampling from the briefs filed in the case:

Supporting the FCC:

National Religious Broadcasters: “Admittedly, NRB believes, as a general rule, that the Commission should leave broadcasters, including religious broadcasters, free to produce and generate broadcast content without unnecessary or unreasonable interference. On the other hand, NRB also believes that the welfare of America, its families, and its youth, will be detrimentally affected by electronic mass communications which contain unrestrained indecency, whether in language or imagery.”

Parents Television Council: “Broadcasters also often contend with a shrug that their programming is no more objectionable than what children can hear in other venues, including the internet and cable television. That there is racy fare available elsewhere in the media world does not mean that it must be available on the public airwaves when children are likely to be watching.” 

Alliance Defense Fund and Family Research Council: “There exists a societal interest in maintaining standards of decency … . Over the past 40 years, courts (in the name of preserving individual freedoms) have ignored this societal interest, causing an ever-eroding and ever-devolving set of standards by which we now conduct ourselves as a society.”

Morality in Media: “A child does not need to hear a four-letter word repeated over and over again in order to enlarge his or her vocabulary. That can happen in an instant. Nor does a child have to understand the meaning of a four-letter word for harm to result. All the child has to do is repeat the word … . To their credit, most mainstream daily newspapers still have rules against use of ‘four-letter’ words. Either they do not print these words at all or they use symbols like, @#%, to represent the words or they skip letters, as in ‘s--t.’… Television and radio also have a technique for allowing their audience to understand that someone has used a four-letter word, without actually repeating it. It’s called ‘bleeping,’ and in most instances ‘bleeping’ is a satisfactory way to handle cursing in the broadcast media.”

Supporting Fox:

NBC, CBS, ABC: "The Commission’s new indecency enforcement regime depends, in the first instance, largely on complaints mass-generated over the Internet by activist ideological groups determined to impose on the rest of the country their narrow sensibilities — views that, however sincerely they might be held, do not plausibly resemble any national community standard of what is 'patently offensive.' Whether broadcasters are exposed to millions of dollars in fines based on these 'complaints' depends, ultimately, on the Commissioners’ evaluation of each broadcast’s 'artistic merit' — which is to say, on their individual tastes. Not  surprisingly, adjudications under this protean policy are demonstrably capricious; they flip and flop only to flip back again and display a unique talent for drawing inexplicable lines.”

Time Warner: “The First Amendment, after all, is based on the principle that it is up to the people, not their Government, to make the choices about what speech to hear and not to hear. Whatever limitations on that principle have been recognized in the narrow context of broadcasting do not generally apply in other contexts, and this Court should not lose sight of that bedrock fact in this broadcasting case. Certainly, content-based restrictions on vulgar or indecent speech have no place in the context of cable television. The very strength of the cable medium lies in the remarkable variety of choices that it offers the public.”

American Civil Liberties Union and other media, arts and advocacy organizations: “Technological developments since Pacifica … indicate that the rationale for censorship of nonobscene broadcasting has lost whatever persuasive force it once may have had. Given cable television, the Internet, and other electronic media today, broadcasting is no longer 'uniquely pervasive' and 'uniquely accessible to children.'”

Thomas Jefferson Center for the Protection of Free Expression and the Media Institute: “The expression at issue here is fully protected by the First Amendment, since it falls under none of the exceptions this Court has recognized.”

Former FCC commissioners (including Mark Fowler, Henry Geller, Newton Minow and James Quello): “We have been dismayed by a series of recent decisions that have transformed a hitherto moderate policy of policing only the most extreme cases of indecent broadcast programming into a campaign of regulatory surveillance that will chill the production of all but the blandest of broadcast programming. Unless the FCC’s current indecency enforcement policy is halted, it will greatly curtail live broadcasts of virtually any event.”

National Association of Broadcasters and Radio-Television News Directors Association: “This stark departure from the Commission’s prior, more restrained approach has had a palpable chilling effect on broadcasting around the country. As demonstrated in this brief, the Commission’s decisions in several recent cases finding even single utterances of certain words actionably indecent have resulted in the arbitrary suppression of broadcast content … . The case before the Court is but the tip of the iceberg.”


2nd Circuit: FCC's policy on accidental expletives is arbitrary

Court sides with Fox TV's challenge, says agency's policy might not survive First Amendment scrutiny. 06.05.07

Panel explores whether Pacifica is outdated

By Dan O’Neil Discussion also addresses fine line between broadcast regulation, censorship. 06.27.08

Court avoids dirty words during TV indecency hearing

Justices spend an hour talking about profanity on television without making plain how they would decide whether government could ban such words. 11.05.08

FCC appeals Janet Jackson case to Supreme Court
Agency says 3rd Circuit incorrectly applied rule regarding fleeting expletives when it threw out $550,000 fine against CBS for singer's breast-baring performance at 2004 Super Bowl. 11.24.08

After Utley utters the unutterable, FCC hears complaints
Federal agency looking into 26 complaints filed by broadcast listeners after Philadelphia Phillies second baseman's joyous outburst during World Series celebration. 12.22.08

Court leaves FCC 'fleeting expletives' rules in place
Justices tell lower court to determine if policy is in line with First Amendment. 04.28.09

On-air expletives, Utah monument cases lead lineup
By Tony Mauro Fox TV's challenge of FCC policy will be closely watched, as will 'Summum Aphorisms' case. 10.02.08

The FCC's Regulation of Indecency

'Indecency & Violence in the Media: FCC v. Pacifica 30 Years Later': Agenda

2008-09 Supreme Court case tracker

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