The FCC and Fox went at it again Wednesday (Jan. 13) over the issue of swearing in a live broadcast, and a pair of courtroom observers said the FCC had a rough time of it, a conclusion upheld by C-SPAN's video of the argument, which it posted not long after the 3 p.m. arguments.
If the FCC loses on constitutional grounds, it could put its entire indecency enforcement regime in question and tee the case up for a return to the Supreme Court.
"To say that the justices were extremely skeptical of the FCC's application of the indecency law from a constitutional perspective in this case is an
understatement," said one observer sympathetic to the broadcaster arguments and who asked not to be identified. The FCC said no one was available to comment on their side of the argument.
The venue was a New York courtroom, where the Second Circuit was getting an earful once again.
"The judges seemed to be very concerned about the First Amendment implications of how the government has been enforcing the indecency law lately," the observer said. "This was a slaughter," said Andrew Schwartzman of Media Access Project, which represents creative types in the TV and music industries (the Coalition for Creative Voices in Media and the Future of Music Coalition], which are supporting broadcasters' fight against the crackdown.
Schwartzman essentially dispensed with the usual caveat that it is hard to predict judges in oral argument. "In this case there was no doubt," he said. "There was some discussion toward the end of the argument about how far to go, but all three judges were clearly ready to find that the FCC's policies are unconstitutional.
Judges Rosemary Pooler, Pierre Level and Peter Hall heard the case, the same three that presided the first time around. Schwartzman said Judge Pooler was ready to say that the FCC's authority didn't extend beyond the seven dirty words of the Pacifica decision, while Judge Leval wasn't going as far as that, but signaled he thought that the FCC's policy advice was unconstitutionally vague without getting into Pacifica, while Hall was "adamant that this was unconstitutionally vague," said Schwartzman.
Hall asked, as he did in initial arguments, whether if the oral arguments were aired on a newscast and the words in question ('fuck' and 'shit') were used--as they were in court Wednesday by two of the three judges--would it be indecent. The FCC's lawyer, Jake Lewis from the General Counsel's Office, said no. The FCC has a higher bar for swearing in newscasts, though they are not immune from indecency enforcement.
Hall followed, as he did last time, with the observation that if the FCC was out to protect children, allowing swearing in newscasts didn't seem to square with that.
Pooler and Leval were the most antagonistic to the government's position. Both used the words, while Hall used "s-word" and "f-word." But all three had constitutional issues.
"The commission's arguably contradictory and bewildering ruling between words that are and words that are not [indecent] seems to me to create a kind of bewildering vagueness that arguably results in a chill vastly beyond anything the Supreme Court ruled on....," said Judge Leval, which pretty much summed up the tenor of the Judges' probing. Philips got served up a lot of fat pitches to hit, while Stewart found many a hardball coming his way.
Broadcasters are looking for a decision that the FCC's application of its rules in this case, as well as the policy advice it said that decision provided going forward, are unconstitutional.
That decision, which would be a little less than a facial challenge to the entire indecency regime but more than a simple as applied challenge to this specific decision, said Schwartzman, would almost certainly send the case back to the Supreme Court. Broadcasters are hopeful the FCC's entire indecency enforcement regime could be up for review in. The arguments Wednesday appeared all to be about the issue of whether the FCC's indecency policy as both applied here and telegraphed for future applications was constitutional.
Arguing for Fox was Carter Phillips, while Miguel Estrada weighed in for CBS and NBC, which were interveners in the case.
The court is re-hearing the case on instructions from the Supreme Court, which overturned the Second Circuit's June 2007 decision that the FCC's crackdown on fleeting profanity was arbitrary and capricious and remanded the decision back to the court. The Supreme Court ruled narrowly, on procedural grounds, as the Second Circuit had done, without getting into the constitutional issues.
The case stems from the FCC's conclusion that the "vulgar expletives" uttered by Cher and Nicole Richie during live Fox broadcasts of the Billboard Music Awards in 2002 and 2003 were a violation of community standards for broadcasting.
The Second Circuit can now get into the First Amendment issues raised by that indecency decision, but which it did not reach in the first go-around.
In a nonprecedential part of the court's original opinion, it signaled the FCC would have a high hurdle on the First Amendment issue. It was nonprecedential because the court did not reach past the procedural issues to make its ruling,
so did not get into the speech issues. Courts historically steer clear of constitutional questions if the appeal can be decided on narrower grounds.
While the court did not take up the constitutional issues as part of its June 2007 decision, it spent several pages ruminating on how difficult it would be for the FCC to make its policy pass the First Amendment smell test.
In effect, the court made the decision narrow, but its opinion on the issue was broad. For example, it cited Supreme Court precedent that broadcast media content regulation is subject to less judicial scrutiny than cable or satellite because of its uniquely pervasive character, an argument the networks said has outlived the reality of a crowded media marketplace. The court said in the face of that precedent it could not change that policy. "Nevertheless," it added, "we would be remiss not to observe that it is increasingly difficult to describe the broadcast media as uniquely pervasive and uniquely accessible to children, and at some point in the future, strict scrutiny may properly apply in the context of regulating broadcast television."
The Parents Television Council whose complaints helped prompt the indecency crackdown, issued a statement Wednesday saying the court "must consider the impact to children and families as it considers this case once again."
Anybody wishing to draw their own conclusions from the arguments--with the caveat that judges sometimes plan devil's advocate with probing questions that may not reveal their leanings--C-SPAN, which got the court's permission to televise the argument, is providing the video online, on-demand beginning at 8 p.m., and on-air--C-SPAN 2--beginning at 9 (unbleeped in both cases).
Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.
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