Supreme Court Takes Indecency Case

Posted on March 17, 2008 by Jeff Gee

The Supreme Court has agreed to hear the FCC's defense of its "Omnibus" Indecency order, which involved the FCC's decision to punish "fleeting" expletives.  The case, FCC v. Fox Television Stations, marks the first real Supreme Court review of the FCC's indecency rules since the famous FCC v. Pacifica case considered George Carlin's "seven dirty words."  The outcome of the case could entirely overturn the FCC's authority to regulate indecency content or further entrench that authority.

At issue in the case is the FCC's decision in its Omnibus Indecency order to sanction Fox Television Stations for "fleeting" or "isolated" uses of indecent words, reversing decades of prior policy on "fleeting expletives".  The Supreme Court's decision to hear the case is somewhat surprising, given the fact that the Court of Appeals for the Second Circuit (which issued the decision under appeal) specifically limited the basis of its decision to a point of administrative procedure, rather than direct First Amendment grounds.  Moreover, the Court of Appeals for the Third Circuit is still considering the appeal of the Super Bowl/Janet Jackson case.  Traditionally, the Supreme Court prefers cases that involve issues of 

Constitutional significance that different appeals courts have decided in different ways.  In appealing the case to the Supreme Court, however, the FCC argued, among other things, that the Second Circuit's decision was really an attack on the entire basis of the FCC's indecency regulation and, by extension, an attack on the Supreme Court's decision in FCC v. Pacifica.  If the Supreme Court follows that argument, we could see a reconsideration of FCC's authority to regulate indecent broadcast content.  On the other hand, the Court may simply weigh in on the procedural point, setting up another round of reconsiderations and appeals that could take years to resolve.

Legal pundits will spend the next few months debating on the Supreme Court's motives for taking the case and predicting the ultimate outcome.  For now, we will limit ourselves to noting that the FCC has a backlog of dozens, perhaps hundreds, of indecency cases that have been held in limbo while the FCC has tried to get more guidance from the courts and Congress.  While today's announcement is a significant event, given that the Supreme Court won't actually hear arguments until fall of this year, those cases may expect to stay in limbo until at least 2009.
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Supremes Keep Us Hangin' On

Posted on March 3, 2008 by Harry Cole

You can't hurry love, and you apparently can't hurry the Supreme Court, either.  Despite considerable speculation that the Supremes might announce on Monday, March 3, whether it had decided to hear the FCC's appeal in the Fox Television indecency case, the Court gave no indication one way or the other on that score in the list of orders it released.  According to the Court's published schedule, the next date on which it will be in session - and, therefore, likely to release any decisions of any kind - will be Monday, March 17.

Unlike the lower Federal courts, the Supremes are under no obligation to hear appeals in any particular case (other than a very small universe of "original jurisdiction" cases, such as disputes between two states).  So when the FCC loses in a Federal court of appeals, as it did in the Fox Television case in the Second Circuit last June, it must ask the Supremes to please agree to review the lower court's ruling.  The Supremes, in turn, will agree to do so only if at least four justices vote to do so.  The odds against getting your foot in the door are long: generally, 95%-99% of petitions for Supreme Court review are denied each year.

The FCC's petition and the TV networks' oppositions were distributed to the Justices for consideration at a February 29 "conference".  A conference is a meeting attended by only the Justices during which such petitions are considered and voted on.  Because the Fox Television case was presumably to be discussed and voted on on February 29, the smart money figured that on March 3 (i.e., the next time it was "in session") the Court would announce whether it would hear the case.  But the list of orders issued by the Court on March 3 contained no reference to the Fox Television case.

So revise your calendars for March 17, and check back here then to come see about it.

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Second Circuit Trashes FCC Indecency Policy

Posted on June 4, 2007 by Harry Cole

In a long-awaited decision, the U.S. Court of Appeals for the Second Circuit has finally dropped the hammer on the Commission's indecency policy. In an opinion issued on June 4, 2007, a three-judge panel (with one dissent) has held that the "fleeting expletive" policy invoked by the Commission in 2004 and then again in the 2006 "Omnibus" indecency decision is arbitrary and capricious. In the Court's view, the FCC's asserted justifications for the "fleeting expletive" policy were less than persuasive.

The "fleeting expletive" policy - as first announced in 2004 and then reaffirmed in 2006 - provided that any broadcast of the words "fuck" or "shit", in almost any context, would be deemed indecent. Historically, the Commission had been far more restrained, acknowledging that the occasional slip-up resulting in the broadcast of an isolated expletive should not warrant censure. But in the wake of the public uproar over the Janet Jackson/Super Bowl incident, the Commission suddenly reversed course and took an exceedingly hard line on indecency generally, and the use of those two words in particular.

The Court's decision is at first blush relatively narrow, finding only that the "fleeting expletive" policy is arbitrary and capricious and thus inconsistent with the Administrative Procedure Act. But in a surprising six-page portion of the opinion, the Court offered its very strong suggestion that the policy would not survive First Amendment analysis. (As a matter of practice, courts generally decline to delve into weighty constitutional issues if a case can be resolved on less radical grounds.)

The majority also indicates that the FCC's "profanity" policy - which first popped up in 2004 - essentially overlaps the indecency policy - which indicates that the profanity policy cannot survive, either.

The case is remanded to the Commission for further action consistent with the Court's decision - but the Court seems clearly to signal that if the Commission tries to shore up its policies on remand (as opposed to running up the white flag and abandoning them), the Court anticipates yet another appeal, the result of which would not be favorable to the Commission.

We are, of course, still awaiting further developments in the Janet Jackson case out of the Third Circuit, but oral argument there is not likely to happen for at least another couple of months.

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