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FCC's 'fleeting expletives' policy in place for now

By Tony Mauro
First Amendment Center legal correspondent

WASHINGTON — Broadcasters may face substantial fines for allowing the airing of unscripted “fleeting expletives” in live shows in the wake of a Supreme Court ruling yesterday that upheld the Federal Communications Commission’s 2004 decision to clamp down on such utterances.

But the vindication of the FCC crackdown is limited and may be short-lived. The 5-4 decision in FCC v. Fox Television Stations was based on administrative law, and explicitly stopped short of assessing whether the policy violates the First Amendment. For that determination, the case returns to the 2nd U.S. Circuit Court of Appeals, which has already expressed doubts about the ban’s constitutionality.

“There is no way to hide the long shadow the First Amendment casts over what the Commission has done,” wrote Justice Ruth Bader Ginsburg in dissent. “Today’s decision does nothing to diminish that shadow.”

Meanwhile, the FCC itself is in transition. President Obama has three seats to fill on the five-member commission, and once the commission is reconstituted, it may give lower priority to policing fleeting expletives — it may even forget about the whole thing.

For the time being, however, broadcasters face uncertainty about their exposure to liability for airing expletives, and that’s unfortunate, says Media Institute President Patrick Maines.

“When added to proposed advertising restrictions and continued opposition to liberalization of the cross ownership rules, fines for fleeting expletives become just another burden for the struggling broadcast industry,” Maines said in a statement. The Media Institute supports broadcast freedom of expression.

“Today’s decision, while disappointing, is likely to be only a temporary reprieve,” said American Civil Liberties Union legal director Steven Shapiro in a statement. “The FCC’s renewed effort to act as national censor cannot survive serious constitutional scrutiny.”

But a group that prodded the commission to change its policy on fleeting expletives in the first place applauded the decision.

“Today’s ruling by the Supreme Court is an incredible victory for families,” said Tim Winter, president of the Parents Television Council. “The Court has affirmed that the broadcast airwaves do indeed belong to the public, and not to the broadcasters who are granted a license to use the public airwaves for free.”

Winter urged the FCC to quickly break the “logjam” of thousands of pending complaints about indecent language on the airwaves, now that the Supreme Court has ruled.

In the Supreme Court’s majority opinion, Justice Antonin Scalia said the commission did not act arbitrarily or capriciously in altering a more relaxed policy that had been in effect more or less since the 1978 decision FCC v. Pacifica. That ruling, which said the FCC could punish the broadcast of the late George Carlin’s classic “Seven Dirty Words You Can’t Say on Television” monologue, left open whether the fleeting use of indecent language could be barred.

“It was rational for the agency to step away from its old regime” under principles that govern policy changes made by government agencies, Scalia said in announcing the opinion. “The agency’s judgment on this matter merits deference, and in any event makes entire sense.”

Scalia said improved technology enables broadcasters to “bleep” indecent language even on live shows, making adherence to the policy unburdensome. Critics of the policy objected that small-town broadcasters can’t afford that technology and might be scared off airing live events. Scalia countered, “Small-town stations generally cannot afford or cannot attract foul-mouthed glitteratae from Hollywood.”

Scalia ended the opinion by allowing that the policy might ultimately be found to violate the First Amendment. But because the lower court did not rule on the question, Scalia said it would be improper for the Supreme Court to “rush to judgment” on the issue.

“It is conceivable that the Commission’s orders may cause some broadcasters to avoid certain language that is beyond the Commission’s reach under the Constitution,” Scalia said. “Whether that is so, and, if so, whether it is unconstitutional, will be determined soon enough, perhaps in this very case.”

Significantly, Justice Clarence Thomas yesterday expressed serious doubts about the constitutionality of the policy.

Though he joined the majority, Thomas expressed misgivings about the Court’s long-standing precedents that give broadcasters less First Amendment protection than other media in which a wider range of expression, including indecent language, is allowed. Thomas noted the “questionable viability” of both the Pacifica decision and the 1969 ruling Red Lion Broadcasting v. FCC, which laid out the rationale for treating broadcasters differently under the First Amendment.

Thomas said that because of the explosion of other media formats including cable, satellite and Internet transmission, traditional broadcast television is no longer the “uniquely pervasive” medium that might once have justified different treatment under the First Amendment.

Carter Phillips, the lawyer who argued the case for Fox before the Supreme Court, said yesterday’s ruling was disappointing. “But the First Amendment issue is potentially much more important.” Phillips said that when he returns to the 2nd Circuit, “We have a lot of tailwind from the dissents and Thomas.”

The FCC’s relaxed attitude toward fleeting expletives changed in 2004, when the commission ruled that Bono’s use of the “f-word” on a live award show was “patently offensive.” The commission did not levy fines, however, to give networks time to adjust to the new policy.

In announcing the opinion, as well as in the text of the decision, Scalia used euphemisms and asterisks instead of the real words at issue.

Scalia quoted the off-color comments made during live Fox award shows in 2002 and 2003 by Cher and Nicole Richie, respectively, that were the focus of the case. During one of the shows Scalia said, Cher told critics, “So f*** ‘em.” He also cited Richie’s comment about her former reality TV show called “The Simple Life.” “Have you ever tried to get cow s*** out of a Prada purse? It’s not so f***ing simple,” Scalia quoted Richie as saying. When the commission served notice on Fox of violations of its new policy, Fox took it to court.

Also in the majority were Chief Justice John Roberts, Anthony Kennedy, and Samuel Alito.

Justices John Paul Stevens, Ginsburg, Stephen Breyer and David Souter dissented.

Breyer said the commission’s justification for changing its policy was “seriously incomplete” and did not meet standards for agency policymaking.

Stevens criticized the FCC’s “shifting and impermissibly vague indecency policy,” and said the majority had failed to distinguish between the sexual or excretory meanings of the words at issue and use of the words to express an emotion.

“As any golfer who has watched his partner shank a short approach knows,” Stevens said, “it would be absurd to accept the suggestion that the resultant four-letter word uttered on the golf course describes sex or excrement and is therefore indecent.”


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

High court to 3rd Circuit: Reconsider wardrobe-malfunction case

Appeals court last year threw out $550,000 fine that FCC had imposed on CBS for 2004 Super Bowl flap involving Janet Jackson. 05.04.09

2nd Circuit rehears 'fleeting expletives' case

Three-judge panel seems poised to toss FCC's policy, keeping government lawyer on defensive during oral arguments and at times mocking government's position. 01.14.10

Thomas not afraid to question First Amendment precedent
By David L. Hudson Jr. While colleagues decide FCC v. Fox on procedural grounds, Clarence Thomas addresses underlying free-speech issues. 04.29.09

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