U.S. Solicitor General Paul D. Clement filed a formal request for Supreme Court review of a recent federal appeals court ruling that slapped down the Federal Communications Commission’s then-new policy on fleeting expletives.
Clement said the decision by the 2nd Circuit Court of Appeals last summer was based on an analysis that “directly conflicts” with broadcast indecency guidelines that the Supreme Court established in a 1978 case.
He claimed that the appeals court ruling “is also inconsistent with settled principles governing judicial review of agency action.”
Last year, the FCC cited Fox Television for two live broadcasts of the Billboard Music Awards – one in 2002, the other 2003. During those two broadcasts, a total of two F-bombs and one S-word flew out of guests mouths. For more than two decades the FCC had not cited broadcasters for fleeting expletives, but that changed in 2004 when the agency decided that some works – i.e., “fuck” and “shit” – were indecent even if uttered just once.
Accordingly, the FCC issued Fox citations for violating broadcast indecency regs, though the agency did not issue accompanying fines. The citations, the FCC said, were meant to serve as guidelines for the new policy and not as punishment.
Fox challenged the new policy, arguing that the commission had not adequately explained or justified it. The 2nd Circuit agreed and tossed it out.
“The (FCC) provided a thorough, reasoned explanation for its change in policy,” Clement argued in his request to the Supreme Court. “Under the deferential standard of review required by the Administrative Procedure Act, the commission’s judgment as to how best to enforce the federal prohibition on the broadcast of indecent material should have been upheld, and the court’s contrary conclusion was erroneous.”
If the high court accepts the case, experts and observers anticipate at the very least a drastic updating – perhaps even curtailing – of FCC indecency authority as it was spelled out by supremes in 1978, when four broadcast networks essentially defined a very small media universe compared to that of today.