Arguments heard in Fox v. FCC

The Supreme Court spent an hour on Tuesday morning considering the question of what makes a bad word cross the line to indecency when it’s uttered on broadcast TV.

The high court spent the first part of Election Day hearing oral arguments in Fox v. FCC, the first broadcast indecency case to be taken by the Supreme Court since its landmark 1978 decision involving George Carlin’s famed “Seven Dirty Words” routine.

But the court seemed reluctant to address the First Amendment issues that Fox has raised in pressing the case. Instead, the justices seemed to zero in during the hourlong Q&A sesh on the procedural issues involved. The substance of Fox’s challenge involves whether the FCC followed proper administrative procedure in changing its policy on isolated or “fleeting” expletives.

In the Fox case, the expletives “shit” and “fuck” flew from the lips of celebs during Fox’s live telecasts of two separate Billboard Awards ceremonies.

Fox maintains that the case is inextricably bound with First Amendment concerns, since the policy involves regulation of protected speech. But several justices made it clear they were not inclined to widen the scope of the case.

The sesh was not without its lighter moments amid the weighty discussions of law.

“Maybe I shouldn’t ask this, but is it ever appropriate for the commission to take into consideration at all whether the particular remark was really hilarious or very funny?” Justice John Paul Stevens asked. “Is that a proper consideration?”

“Oh, it’s funny,” said Justice Antonin Scalia. “I mean, bawdy jokes are OK if they are really good.”

Stevens probed for distinctions between the literal and figurative meaning of “fuck,” noting that it is often uttered “with no reference whatsoever to the sexual connotation.”

The FCC defines indecency as material that inappropriately expresses sexual or excretory functions.

Scalia interjected that even if used devoid of sexual connotation, a word like “fuck” has the power to shock because at its core it is sexual even if that meaning is not intended.

Fox attorney Carter Phillips said the court would be conducting “an artificial inquiry” if it did not address the constitutional questions raised by FCC indecency enforcement. But Chief Justice John Roberts was skeptical of that proposition, saying it suggested the court should always include constitutional issues when deciding a procedural case.

Fox v. FCC resulted from a 2006 commission ruling that declared the net violated the FCC’s new policy on fleeting expletives when profanities flew during the Billboard Awards broadcasts. For decades, the agency had not cited broadcasters for isolated expletives in live settings, but in 2004 the agency initiated a policy change holding that a single utterance of certain words is inherently indecent and therefore actionable.

The 2006 ruling against Fox did not carry the normal accompanying fine, because the FCC said the ruling was meant to be a guideline for the new policy.

Fox took the agency to court, arguing that it had not adequately explained or justified the policy change as required by the federal Administrative Procedures Act. The 2nd Circuit Court of Appeals agreed with Fox and voided the new policy until the FCC provided fuller explanation. However, in an unusual move, the appeals court expressed doubt that even if the FCC could meet APA requirements, it would likely fall short of a First Amendment challenge.

Arguing on behalf of the FCC, U.S. Solicitor General Gregory Garre told the Supreme Court that the FCC, contrary to the appeals court’s decision, had fully “and concretely” explained its new policy and that the new policy was “entirely consistent with the commission’s statutory mandate.”

Justice Ruth Bader Ginsburg said, “There seems to be no rhyme or reason for some of the decisions that the commission has made.” Garre said there was both rhyme and reason and then steered back toward the procedural issues.

Phillips argued that in reversing its policy on isolated expletives, the FCC had failed to explain precisely why it had not found those words actionably indecent for decades but did so now. Justice David Souter suggested that the new factor could simply be unprecedented viewer complaints about these words, and that that could be enough to satisfy procedural requirements for explanation and justification.

Phillips agreed, but only in a narrow procedural context that ignored the constitutional implications.

“But a raw procedural issue is what we have here,” Souter said.

A decision is expected some time next year. Broadcast industry insiders, who did not want to be identified, said they doubted the court’s decision would address anything beyond the procedural aspects of the case. But once the court rules on the procedural aspects, a constitutional challenge to the new policy would still be possible.

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