Quick Appeals Court Ruling in Fox v. FCC Indecency Case Seen
A ruling in the Fox v. FCC indecency case could come early next year, after an order Thurs. by the 2nd U.S. Appeals Court, N.Y., set an expedited schedule to file documents, said lawyers involved. The FCC got a 60-day stay, as expected (CD Aug 30 p3). When the stay ends Nov. 6, both sides will have just over a month to file all prehearing documents.
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Petitions for review and reply briefs must be filed by Dec. 11, according to a schedule set by Judges Ralph Winter, Jose Cabranes and Rosemary Pooler. “The clerk of the court is… directed to include the instant petition in the first calendar proposed after the petition’s reinstatement,” they wrote.
This signals that oral arguments could be heard within a month of the final filing deadline, said lawyers involved in the case. A court decision could come soon after arguments are heard, they said. “I think this is a case they'll decide fairly quickly,” a broadcasting official said. Media Access Project Pres. Andrew Schwartzman, representing an actors group in the case, agreed: “They've responded to the broadcasters’ request to put this on a very fast track.”
Networks cheered the stay of enforcement of the indecency actions, brought against ABC’s NYPD Blue, CBS’s Early Show and Fox’s 2002-2003 Billboard Music Awards broadcasts. “Talk about a tight leash,” a broadcasting lawyer said. A Fox spokesman said: “The 2nd Circuit, in granting our stay request, has recognized the serious First Amendment issues that are raised in this appeal and the chilling effect of the FCC’s indecency enforcement scheme,.” CBS said it’s “gratified.”
The enforcement stay probably came because the judges found merit in arguments that isolated use of “shit” and other words don’t constitute “indecency” as defined by the 1978 Supreme Court FCC v Pacifica decision, said a lobbyist representing firms before the FCC. The order’s reference to a 2004 Golden Globe FCC indecency order shows that the court will consider broader free speech issues, said lawyers in the case. “There is at least a modicum of merit to the appeal… A court is not supposed to grant a stay if it finds an appeal absolutely without merit,” Schwartzman said: “It’s not necessarily bad for the FCC. But it’s something the broadcasters dearly wanted.”
The FCC found much to like in the court order, too. “It ensures that the Commission will have the opportunity to hear all of the broadcasters arguments first,” the agency said. An FCC official disagreed with some broadcaster interpretations of the order, telling us: “I don’t see anywhere… that the court said anything about the merits of the case.” The official called the stay “very limited” and said: “We don’t think that broadcasters have been given a free pass for the duration of this case to use the F-word and the S-word whenever they want.” - Jonathan Make