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Justice Takes On High Hurdle

The Bush administration has decided to appeal the Fox profanity decision to the Supreme Court.

That is the one where the Second Circuit Court of Appeals said the FCC’s profanity findings against Fox for Cher and Nicole Ritchie’s colorful language on the Billboard awards show was arbitrary and capricious.

The Solicitor General had sought two separate extensions for filing the appeal–the latest while it prepares the peitition.

If past is prologue, the FCC probably presented a draft of a cert petition, which the administration may have wanted to tweak.

Several First Amendment attorneys of our acquaintance have said it is not a good case to catch the attention of the High Court, however. But, ironically, that may work for the FCC..

If the court turns down the review, as First Amendment attorneys say is likely, the FCC could go to Congress and say: "We’ve done all we can. Help!"

There are already bills in the House and Senate that would give the FCC express authority to fine fleeting words and images, bills that have been on the back burner while the wheels of Justice on profanity and Janet Jackson’s breast turn at their usual snail’s pace.

Arguing for the Supreme Court passing on the case is that the Fox decision hinged on the Admiministrative Procedures Act, essentially saying the FCC had failed to follow those procedures for alerting regulated media to changes in enforcement.

The Supremes prefer to take cases that deal with larger issues like the larger, First Amendment implications of the FCC’s indecency regulation regime.

While the Second Circuit waxed at length on those implications, it did so with its dicta (no jokes, please), which are extra comments in a decision that cannot be used as precedent. It appeared to be chafing at the bit to reach the larger constutional issues, but if a case can be decided on narrower grounds, it is essentially precluded by longstanding precedent from ruling more broadly.

Another reason the FCC may have been pushing for High Court review is that once its appeals are exhausted, and if Congress isn’t in the mood to pass any legislation, the ball is in the commission’s court. 

It can either try to justify pursuing fleeting profanities, which the court has indicated is a high hurdle, or not pursue them, which would not please the family values groups whose complaints helped drive the indecency crackdown.