Out of Control Policy Blog

High Court to Hear FCC Profanity Case

The U.S. Supreme Court, taking its first major case of broadcast indecency in 30 years, will hear an FCC appeal of a Second U.S. Circuit Court of Appeals ruling that nullified the agency's enforcement regime regarding "fleeting expletives," AP is reporting.

The case stems from an FCC claim that broadcasts of entertainment awards shows in 2002 and 2003 were indecent because of profanity uttered by U2 Lead singer Bono, Cher and Nicole Richie. Although no fines were issued, the FCC's policy reserves the right to levy financial penalties in the future.

At issue is whether the passing use of language that might be objectionable to some viewers constitutes indecency under FCC guidelines. The Second Circuit Court sidestepped the content issue by citing procedural irregularities, namely that the FCC policy was invalid because the agency had changed it without adequate explanation. The case stemmed from Bono's ad-libbed, apparently unscripted, exclamation, "f***ing brilliant!" during the NBC broadcast of the 2003 Golden Globes Awards show. The same FCC case also cited the Fox network over similar language by Cher and Richie during the 2002 and 2003 Billboard Music Awards.

Despite the FCC's contention that it received hundreds of thousands of complaints over the language, the Second Circuit "was skeptical that the commission can provide a reasoned explanation for its fleeting expletive regime that would pass constitutional muster," AP reporter Mark Sherman wrote.

Although the Supreme Court won't hear the case until the fall, it will be interesting to see how it plays out. When it comes to regulating content, the FCC is fighting for relevance. FCC Chairman Kevin Martin has made no secret of his desire to police premium cable content (think The Sopranos, The Wire and The L Word) for "indecency," not to mention Web content, and he might try to leverage a court decision in this regard (assuming he keeps his post in 2009). Yet Martin has often been subjective. In the past he has given an official past to broadcast airings of Saving Private Ryan, the Steven Spielberg war film that contains a fair amount of (scripted) profanity.

That tendency to pick-and-chose has reduced Martin's legal arguments to the notion that the government needs to be watching out for public taste. At the same time, he did a fine job bolstering the First Amendment argument against banning profanity speech by choosing to use examples of it–mostly for shock effect–in his official comment on the Second Court's decision.

Stating, as Solicitor General Paul Clement did, that the Second Circuit put the FCC "in an untenable position," powerless to stop the airing of expletives even when children are watching, presupposes that it's the FCC's business to decide what children should be watching. Hence, the Second Court did at least address the correct constitutional questions the FCC action raised, and, for my part came, down on the right side–rules can't be vague and subjective.


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