Tussle over agency crackdown spurs high court move
As Hollywood cheered the Supreme Court’s decision to strike down California’s violent videogame law, many see the ruling as a good sign that the high court may be prepared to roll back the FCC’s authority on indecency that has long dogged broadcasters.
On Monday, the high court agreed to review the broadcast networks’ challenge to the FCC’s crackdown on so-called fleeting expletives, with oral arguments expected later this year or early next year. The court said that its review will be limited to whether the FCC’s enforcement regime violates the First and Fifth amendment guarantees of freedom of speech and due process.
That in and of itself is a big deal, as broadcasters have long bristled that the FCC’s rules are too vague and that it doesn’t make sense to restrict their content while cable and satellite TV providers and the Internet don’t face the same oversight.
The videogame decision “should be reassuring for broadcasters,” said Eugene Volokh, professor at the UCLA School of Law, noting that the case showed “the justices take a relative speech-protective view even when talking about the concerns about children.” The FCC’s rules center on content during hours when children are most likely to be watching.
The FCC argues that its policies are based on a sound approach that take into account the context of when indecent content was shown or heard. But broadcasters say that only in the past decade did the FCC sanction stations for “fleeting” expletives.
In a statement Fox said it looks forward “to the Supreme Court’s review of the significant constitutional issues in the case. We are hopeful that the court will ultimately agree that the FCC’s indecency enforcement practices trample on the First Amendment rights of broadcasters.”
The FCC said, “We are hopeful that the court will affirm the commission’s exercise of its statutory responsibility to protect children and families from indecent broadcast programming.”
The impetus for the case was Fox’s broadcasts of the Billboard Music Awards, in which Cher and Nicole Richie dropped the f-bomb in separate incidents in 2002 and 2003.
That triggered an effort to beef up the enforcement of the FCC’s indecency policies. The FCC ruled that Fox stations had been in violation but did not issue sanctions. But it did issue fines against ABC stations for a 2003 “NYPD Blue” episode that featured a fleeting shot of Charlotte Ross’ naked behind. ABC is among the broadcasters challenging the commission’s authority to police the airwaves.
The Supreme Court already upheld the FCC’s indecency authority in a 5-4 decision in 2009, but it did not weigh in on constitutional questions. Instead, it sent those back to the 2nd Circuit Court of Appeals, which again reviewed the case last year and ruled that the FCC policy “effectively chills speech.” The FCC then appealed to the high court.
Most intriguing to broadcasters have been the views of Justice Clarence Thomas. In 2009, he sided with the majority but wrote in a concurring opinion that the FCC’s policies were a “deep intrusion into the First Amendment rights of broadcasters.”
That has raised speculation that the court will take another look at its 1978 decision in the Pacifica case, in which the high court sided with the FCC for sanctioning a public radio station for airing George Carlin’s famous “seven dirty words” monologue.
Volokh noted that the Pacifica case has not been one that the high court has “repeatedly reaffirmed and broadened. If anything, it has narrowed it.”
Andrew Jay Schwartzman, policy director of the public interest group Media Access Project, said it is not a surprise the high court agreed to review the case, given that it “almost always” hears appeals when a federal policy has been declared unconstitutional.
He said it was “encouraging” the court limited its review to the constitutionality of the FCC’s policies, and not “the entire scheme of broadcast regulation.”
The FCC has relied on the Pacifica decision for its authority in restricting indecent content during hours when children may be watching or listening.
There’s also another scenario: a tie. That’s because Justice Sonia Sotomayor recused herself from the decision to review the indecency case, raising the possibility that she will not participate in the ultimate decision. She gave no reason for doing so, but some speculate it is because she previously served on the 2nd Circuit Court of Appeals.
Several weeks ago, Justice Samuel Alito disclosed he participated in the court’s 2009 decision even though at the time he held stock in the Walt Disney Co., which owns ABC. He blamed it on a staff oversight, and he has since sold the stock.