Fox in appellate court in case vs. FCC

The broadcast networks opened the latest chapter in their long-fought challenge to the FCC’s indecency enforcement on Wednesday, with Fox attorneys arguing to a federal appeals court that the government’s practices stifle free speech and violate the First Amendment.

The case — FCC v. Fox Television Stations — stems from the FCC clampdown on so-called fleeting expletives after Cher and Nicole Richie each uttered swear words during the live telecast of the Billboard Music Awards in 2002 and 2003, respectively.

Although last spring the Supreme Court sided with the FCC and overturned a lower court ruling, it was on procedural grounds, and it ordered the Second Circuit Court of Appeals in New York to reconsider the case on much weightier constitutional concerns. That raises the possibility that the FCC could ultimately see its ability to regulate indecent content curtailed.

During arguments, the appellate judges kept a government lawyer on the defensive with dozens of questions that suggested that the FCC’s current policy violates the First Amendment. Attorney Jacob Lewis, representing the FCC, argued that its policy was designed to protect children, and he also said that the broadcast networks’ voluntary ratings system was ineffective.

One observer said that the tone of the judge’s questions reflected skepticism over the government’s case, which bodes well for the networks. But this is the same panel that ruled in the networks’ favor in 2007 on the grounds that the FCC’s policy was “arbitrary and capricious.” The Second Circuit also expressed doubts back then that the FCC’s policies “could pass constitutional muster.”

Fox’s case comes with the support of other broadcast networks, which have bristled under greater government enforcement and heavier fines for indecent content. The nets have argued that FCC policies are too vague.

Next month, CBS will challenge the $550,000 in fines its affiliate stations received after the infamous Janet Jackson “breast-bearing” incident at the 2004 Super Bowl halftime show. That case, too, has triggered doubts about the FCC’s policy, although it has to do not with a fleeting expletive but a fleeting visual, a distinction that the Third Circuit Court of Appeals in Philadelphia is expected to consider.

Tim Winter, prexy of conservative media watchdog group the Parents Television Council, said in a statement shortly before the Wednesday proceedings that the indecency laws are clear enough. “The indecency law doesn’t prohibit broadcasters from airing indecent material; it only requires that indecent material air outside the hours when children are likely to be in the audience,” he said.

Moreover, he called the nets’ previous claims that the laws have a “chilling effect” on free speech “patently absurd,” citing a recent episode of Fox’s “American Dad” featuring a man masturbating a horse and other examples.

Media watchdog orgs have been watching the case carefully, not just for the courtroom developments, but to see how aggressively the FCC under new chairman Julius Genachowski pursues the case and acts on more recent complaints.

If the appeals court rules in the networks’ favor, the FCC will have to consider the significant possibility of losing should it take the case back to the high court.

The Supreme Court’s decision last year was a 5-4 ruling. But Justice Clarence Thomas, while siding with the majority, expressed concerns in a concurring opinion that the FCC’s policies were a “deep intrusion into the First Amendment rights of broadcasters.” He also questioned why broadcast networks were subject to indecency sanctions when their cable and satellite competition were not.

(The Associated Press contributed to this report.)

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