First Amendment Face-off: Supremes To Consider Constitutionality of FCC Indecency Regime

Fox and NYPD Blue cases could provide last word in long-running debate

The Supreme Court has agreed to review the decisions of the U.S. Court of Appeals for the Second Circuit in the Fox Television and NYPD Blue cases. In a terse order issued the last day of the Court’s term, the Supremes said that it would consider only the following question:

Whether the Federal Communications Commission’s current indecency-enforcement regime violates the First or Fifth Amendment to the United States Constitution.

And with that the stage has been set for what could be the final battle in the decades-long struggle relative to the regulation of so-called “indecency” on broadcast stations.

The FCC rulings that will provide the focal point of the case involve two awards shows (in which first Cher, and then Nicole Richie, let loose with some supposedly unscripted expletives on live TV) and an episode of NYPD Blue which featured a brief – less than seven seconds, by our count – view of Charlotte Ross’s naked rear end (prompting the FCC to declare buttocks to be a sexual organ).

We have blogged repeatedly about the long-running indecency saga – click here and scroll down for a sampler – and the Supreme Court’s order provides little additional insight into what might be in store. (Interestingly, Justice Sotomayor did not participate in the decision to review the case; it’s not clear whether that means that she might recuse herself entirely from the case.) However, the Court’s express limitation of the case to the constitutionality of the FCC’s indecency policy does indicate that, unlike the last time this case was before the Court, we are in fact likely to get a determination of the constitutionality of that policy. And let’s not forget Justice Thomas’s separate opinion the last time Fox was before the Court – an opinion in which he suggested that, if the case came back, he might be inclined to look into the continuing validity of the Red Lion doctrine. (Red Lion is the 1969 Supreme Court decision in which the scarcity rationale was embraced by the Court as a justification for according broadcasters less than full First Amendment rights.)

The Court will now set up a briefing and argument schedule. Look for briefs to be submitted by the end of the summer or early fall, with an argument date following several weeks later. It’s reasonably likely that the argument will be held before the end of the year, although the Court might not issue its ruling until June, 2012. Check back here for updates.

[Blogmeister’s Note: Let’s not forget that, almost a year ago, our resident Swami Kevin Goldberg predicted that, if the Fox case were to go back up to the Supremes, Fox would win, by 6-3, or maybe 7-2, margin. We’ll be checking back with the Swami after the argument next fall to see if he’s sticking with that.]

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