Supreme Court to Decide if Lone Curse Can Bring Fine

Ruling 3-2 June 4, the 2nd Circuit Court of Appeals in New York remanded the fleeting indecency policy to the FCC, finding that broadcasters didn’t get adequate notice. The majority opinion didn’t deal with constitutional questions, only rulemaking procedure, leading broadcast lawyers and executives to think the high court, which rarely addresses administrative topics, would choose not to take the case. Second Circuit Judges Rosemary Pooler and Peter Hall said the FCC violated the Administrative Procedure Act, vacating two FCC orders finding Fox’s 2002 and 2003 Billboard awards shows indecent. The FCC and U.S. Solicitor General appealed.

The Supreme Court’s decision came “to my surprise and the surprise of others who were thinking that it probably would not be interested in a case that was decided on administrative procedure grounds,” said broadcast lawyer John Crigler, an indecency expert. The move also surprised Media Access Project President Andrew Schwartzman, who represented the Center for Creative Voices in Media in the 2nd Circuit case. “We were not alone in expecting that the court would reject the government’s request,” Schwartzman said in a release.

But the high court is unlikely to consider constitutional ramifications of the FCC policy, since the Solicitor General didn’t raise the issue in seeking Supreme Court review, Schwartzman said. “It’s only a statutory case” involving whether the FCC exceeded its congressional authority, he said in an interview. Chief Justice John “Roberts would seem to be very sympathetic to the concerns of broadcasters,” Schwartzman added, noting that while at Hogan & Hartson Roberts represented Fox and others. But the chief justice may feel the pull of sentiment from the “conservative milieu” that the government should crack down on curse words on TV, he said.

Other justices may be open to broadcasters’ arguments that the high court’s Pacifica decision letting the FCC fine broadcasters for airing obscenities is outdated, said a broadcast lawyer. Cable and satellite-TV, the Internet and other media don’t face restrictions on indecency, so the high court may find that over-the-air broadcasts need not come under such rules, the lawyer said. And Justice Ruth Bader Ginsburg may be receptive to broadcaster arguments that the FCC is not adhering to Congressional directions to exercise restraint in enforcing the fleeting expletive policy, as the court required in Pacifica, the source said. The Parents TV Council said broadcasting “is every bit as pervasive today as [it] was at the time of the Pacifica decision.”

Broadcasters and regulators agree that the case may give the industry guidance on what content runs afoul of indecency rules. “Justices will provide badly-needed clarity to both broadcasters and policymakers on this critically-important First Amendment case,” said NAB. FCC Commissioner Michael Copps said the case “will hopefully bring additional clarity to concerned citizens and broadcasters alike.” FCC Chairman Kevin Martin said the commission must “enforce laws restricting indecent language on television and radio when children are in the audience.”

In the first of the two Billboard award shows at issue, Cher said “fuck ‘em” of critics. A year later, Nicole Ritchie swore twice, referring to The Simple Life, in which she worked on a farm, saying: “Have you ever tried to get cow shit out of a Prada purse? It’s not so fucking simple.” The curses were extemporaneous, so Fox didn’t know in advance that they would occur, a possible buttress for its argument, said a broadcast lawyer. No forfeiture orders or notices of apparent liability over other indecent content are circulating among FCC commissioners, said an agency source. - - Jonathan Make