Government can threaten networks with fines

Tuesday’s Supreme Court decision on broadcast indecency sets the stage for a renewed court battle on the First Amendment issues raised by the FCC’s indecency enforcement policies.

In its first major ruling on broadcast indecency in nearly 20 years, the high court upheld the Federal Communications Commission’s right to sanction broadcast networks when an F-bomb or other profanity slips through on a live telecast. (Read the ruling.)

But the decision was limited to a narrow procedural issue, while the thornier constitutional question of the FCC’s right to police the airwaves was sent back to a federal appeals court for another review. And the result of that process seems bound to be back at the Supreme Court within a year or two, biz insiders said.

In its 5-4 decision, the court said it did not find the FCC’s policy on so-called fleeting expletives either “arbitrary or capricious,” dealing a blow to the networks in their efforts to scuttle the policy. But the case brought by Fox to the high court was a narrow challenge on procedural grounds to the manner in which the FCC handled its decision to toughen up its policy on fleeting expletives.

Fox, with the support of ABC, CBS and NBC, argued that the commission did not give enough notice of nor properly explain the reasons for clamping down on fleeting expletives after declining to issue penalties for them in decades past. The issue first arose in 2004, when the FCC sanctioned, but did not fine, NBC for Bono’s use of the phrase “fucking brilliant” during the Golden Globes telecast.

The majority decision written by Justice Antonin Scalia reversed the lower appellate court’s decision that the FCC’s move was “arbitrary and capricious.” But the decision also sent the case back to the 2nd Court of Appeals in New York to directly address the constitutionality of the FCC’s policy. The 2nd Court of Appeals is already on record in its 2007 ruling that it was “skeptical” the policy could “pass constitutional muster.”

The Fox case has its origins in a 2006 FCC ruling that found the net violated rules when Cher blurted out an expletive during the 2002 Billboard Awards telecast and when Nicole Richie used two swear words during the ceremony a year later.

The broadcast networks have argued that the FCC’s policy is unfair, and punishments have been meted out in some cases and not others. Moreover, many have argued that the policy is outdated in the age of cable and the Internet, which don’t fall under the commission’s indecency mandate.

In a statement Tuesday, Fox said it had hoped to prevail on the procedural matter, but “Fox is looking forward to the 2nd Circuit’s consideration of the very important issues at stake in this case and (is) optimistic that we will ultimately prevail when the First Amendment issues are fully aired before the courts.”

In fact, Fox opted to focus on the narrow procedural issue in the high court challenge because the nets were wary of bringing a full-blown First Amendment challenge to the Supreme Court in its current conservative-leaning configuration.

Now they likely have no choice, because the 2nd Circuit’s decision on constitutionality is likely to wind up right back in an appeal to the Supreme Court unless the FCC under the Obama administration and its incoming chairman, Julius Genachowski, decides to pull back on the indecency clampdown that has been under way for the past five years.

Acting FCC chairman Michael Copps, a Democrat who was appointed by the Obama administration on an interim basis, called the court’s ruling “a big win for America’s families” in light of the “blatant coarsening of programming in recent years.”

Tim Winter, president of the Parents Television Council, which has been at the forefront of pressing for an FCC crackdown, also characterized the ruling as an “incredible victory for families” and urged the networks to abandon “a path of attempted obstruction with countless legal maneuverings.”

The push for the FCC to more aggressively police the broadcast airwaves, particularly on TV, was largely spurred by the infamous breast-baring incident involving singer Janet Jackson at the 2004 Super Bowl halftime show.

The FCC fined CBS-owned stations and affiliates $550,000 for the Super Bowl incident. That fine was thrown out by the 3rd Circuit Court of Appeals last year. The Supreme Court has yet to issue a decision on whether it will hear the FCC’s appeal.

Biz insiders who are following the indecency court battles say the Super Bowl case is now likely to be sent back to the 3rd Circuit in Philadelphia for a new hearing based on the guidance offered in Tuesday’s decision. CBS has pursued its challenge on the same grounds as the Fox case, namely that the FCC did not adequately warn or explain to broadcasters that it would toughen up its indecency standards for fleeting images.

In Tuesday’s ruling, Scalia said the FCC’s reasons for expanding its enforcement “were entirely rational.”

“Even when used as an expletive, the F-word’s power to insult and offend derives from its sexual meaning,” he wrote.

“The FCC did not need empirical evidence proving that fleeting expletives constitute harmful ‘first blows’ to children; it suffices to know that children mimic behavior they observe.”

Broadcast TV execs said they were intrigued by mentions made in a concurring opinion by Justice Clarence Thomas and in a dissenting opinion by Justice Ruth Bader Ginsburg.

Thomas raised the larger question about indecency policy being a “deep intrusion into the First Amendment rights of broadcasters.” And he noted that in today’s media landscape, broadcast television is no longer “uniquely pervasive” and is often delivered to viewers as part of a cable or satellite TV service with channels that fall outside the FCC’s indecency authority. Those points go to the heart of the argument by broadcasters why it is an unreasonable burden for them to be subject to indecency fines but not their cable/satellite competish.

Ginsburg seemed to urge her colleagues to cut to the chase and grapple with the First Amendment issues at stake.

“There is no way to hide the long shadow the First Amendment casts over what the commission has done. Today’s decision does nothing to diminish that shadow,” she wrote.

Network chiefs have been vocal about warning that the government’s indecency crackdown during the Bush years would have a chilling effect on the creative process. When it debuted Ken Burns miniseries “The War” in 2007, PBS sent out both edited and unedited copies of the documentary, leaving it up to local stations to decide whether they wanted to include scenes where WWII veterans use expletives, and when the acronym “Snafu” is defined.

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