In a move that surprised even longtime court watchers, the Supreme Court decided Monday to hear its first broadcast indecency case in 30 years.
The case, to be argued in the fall, involves a recent Federal Communications Commission policy that holds broadcasters liable for “fleeting expletives” — single instances of certain profanities, uttered usually in live settings. But the justices could also review constitutional issues raised by the commission’s overall indecency regime, which may no longer be tenable in the age of filtering technologies.
“This court can do anything it wants,” said one industry observer. “Maybe (Justice Antonin) Scalia gets out on the libertarian side of his bed that morning and says, ‘Why do we even have an indecency provision?’ ”
Then again, the court could reaffirm the provision.
In March 2006, the FCC cited Fox for fleeting expletives that celebs Cher and Nicole Richie let fly during the net’s live broadcast of Billboard Music Awards shows in 2002 and 2003, respectively.
Fox challenged the citations, arguing they signaled an “arbitrary and capricious” change in FCC policy, which for decades had exempted one-time profanities uttered during live broadcasts.
A federal appeals court agreed, ruling in 2007 that the new policy was invalid and would remain so until the FCC better explained and justified it. Via the Justice Dept.’s solicitor general, who represents the government, the FCC asked the Supreme Court to review the ruling, claiming that agency lawyers had indeed explained and justified the new policy sufficiently.
Many experts doubted the high court would take the case, since the appeals court ruling was based on procedural grounds — specifically, that the FCC had failed to enact its new policy per the dictates of the Administrative Procedure Act.
Though constitutional issues were implicit in the case — the appeals court said that even if the FCC could fulfill its APA requirements, it doubted the fleeting expletives policy would pass constitutional muster — the Supreme Court usually does not accept cases unless constitutional questions are explicitly at the forefront.
“This does come as a surprise,” said Andrew Jay Schwartzman, prexy-CEO of activist group Media Access Project, in a statement. “We were not alone in expecting that the court would reject the government’s request to hear the fleeting expletive challenge.”
Several industry insiders and experts surmised that U.S. Solicitor General Paul Clement’s involvement was a determining factor in the court’s decision to accept the case.
When the solicitor general asks for review, “it significantly raises the odds that the court will take the case,” one legal expert observed. “This merely indicates that the court agrees it is significant enough of an issue to decide and does not suggest leaning either way on the outcome.”
Clement said the appeals court ruling that voided the fleeting expletives policy essentially gutted the FCC’s ability to fulfill its mandate of policing airwaves when children are likely to be in the audience (defined as between the hours of 6 a.m. and 10 p.m.).
Fox was optimistic, saying in a statement that the net “is pleased that the Supreme Court has decided to hear this case, as this will give us an opportunity to demonstrate once again the arbitrary nature of the FCC’s decision in this and similar cases. It will also give us the opportunity to argue that the FCC’s expanded enforcement of the indecency law is unconstitutional in today’s diverse media marketplace where parents have access to a variety of tools to monitor their children’s television viewing.”
The likelihood that the Supremes would quickly dispense with the procedural issues of the case to get into broad constitutional ones appears strong.
“Chief Justice John Roberts said that he wants the court to make narrow decisions,” the industry observer noted. “It would’ve been very easy and narrow just to say no to this case because of the APA issues. But this will open up the whole megillah. It’s not just going to be an APA case.”
The court last ruled on broadcast indecency in 1978, in FCC v. Pacifica, a case involving radio. At the time, the media universe was dominated by broadcast, and no filtering technologies existed. Broadcasters have argued for years that the Pacifica decision needs to be updated to reflect not just the enormous expansion in media outlets since 1978 but also the advent of relevant technologies that undercut the government’s stated need to police airwaves.
“The National Assn. of Broadcasters is pleased the Supreme Court has agreed to review this case and that Justices will provide badly needed clarity to both broadcasters and policymakers on this critically important First Amendment case,” said NAB exec VP Dennis Wharton.
FCC chairman Kevin J. Martin, who has led the agency’s crackdown on broadcast indecency, also hailed the Supreme Court’s decision, as did Parents Television Council, the conservative group that has lobbied heavily for the crackdown.