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Supreme Court Backs Government's Call On Fleeting Expletives

In a close and narrow opinion, the Supreme Court has backed the government's power to regulate the broadcast of so-called "fleeting expletives" on live television.

It was close because it was 5-4; narrow because it did not get to underlying constitutional questions of content regulation, which will be left for another day.

There was also a wide divergence of opinions, with one of the majority, Judge Clarence Thomas, saying in a separate opinion that he thinks the whole constitutional underpinning for indecency regulation is ripe for review.

The decision Tuesday reverses and remands a lower court ruling -- Second Circuit Court of Appeals --  that the FCC did not justify its change in policy on fleeting expletives. The Supreme Court majority found that the agency's explanation was "sufficient" to sustain its change in policy, according to Justice Antonin Scalia, writing the majority opinion: "The FCC's new policy and its order finding the broadcasts at issue actionably indecent were neither arbitrary nor capricious."

It did not reach the constitutional questions about the FCC's content control regime, leaving that to the Second Circuit, if it chooses to take up those questions.

But the court did find that a government agency like the FCC does not have any higher threshold for defending/explaining a change in a policy than it does for setting a policy in the first place, nor does it have a higher bar for changes that implicate constitutional issues.

The legal battle stems from the FCC's ruling against Fox for airing expletives uttered by Nicole Richie and Cher during live broadcasts of the Billboard Music Awards in 2002 and 2003. The appellate court invalidated the FCC's ruling and further called into question its broader indecency-enforcement regime.

"It is conceivable that the commission's orders may cause some broadcasters to avoid certain language that is beyond the commission's reach under The Constitution," wrote Scalia for the majority. "Whether that is so, and, if so, whether it is unconstitutional, will be determined soon enough, perhaps in this very case. Meanwhile, any chilled references to excretory and sexual material surely lie at the periphery of First Amendment concern. [A reference to the Pacifica case language that established the FCC's content control powers]. We see no reason to abandon our usual procedures in a rush to judgment without a lower court opinion. We decline to address the constitutional questions at this time."

But the court's dissenting voices also spoke up. Writing for Justices Ruth Bader Ginsburg, David Souter and John Paul Stevens, Justice Stephen Breyer said they felt the FCC had failed to say why it had changed its policy from one that permitted fleeting use to one that did not make that exception.

While the majority said that, "The fact that technological advances have made it easier for broadcasters to bleep out offending words further supports the Commission's stepped-up enforcement policy." Breyer countered that it might not be so easy for smaller and independent broadcasters to afford the technology, citing Fox figures that bleeping/delay systems could cost up to $100,000. He also cited an article in B&C about the impact on potential fines on live coverage by stations.

"What did the FCC say in response to this claim? What did it say about the likely impact of the new policy on the coverage that its new policy is most likely to affect, coverage of local live events-city council meetings, local sports events, community arts productions, and the like? It said nothing at all," opined Breyer.

Breyer also argued that the FCC had no evidence for the argument that allowing fleeting indecencies would permit broadcasters to become serial swearers so long as they did it one at a time. He pointed out that for the 25 years before the FCC changed the policy there was no evidence broadcasters had used that opportunity to air profanities.

But Scalia argued that "to predict that complete immunity for fleeting expletives, ardently desired by broadcasters, will lead to a substantial increase in fleeting expletives seems to us an exercise in logic rather than clairvoyance. The Court of Appeals was perhaps correct that the Commission's prior policy had not yet caused broadcasters to barrag[e] the airwaves with expletives," he conceded, but said: "That may have been because its prior permissive policy had been confirmed (save in dicta) only at the staff level. In any event, as the Golden Globes order demonstrated, it did produce more expletives than the Commission (which has the first call in this matter) deemed in conformity with the statute."

Although he voted to uphold the FCC on the narrow procedural grounds, in a separate opinion, Justice Thomas made it clear he sides with those who think the key cases underpinning broadcast content regulation need a second look. Those are the Red Lion decision upholding the so-called Fairness Doctrine (which the FCC itself scrapped in 1987), and the Pacifica decision finding the George Carlin Filthy Words monologue indecent.

"This deep intrusion into the First Amendment rights of broadcasters, which the Court has justified based only on the nature of the medium, is problematic...." he said, referring to the "unique pervasiveness" and "spectrum scarcity" rationales for regulation.

"[E]ven if this Court's disfavored treatment of broadcasters under the First Amendment could have been justified at the time of Red Lion [Fairness Doctrine] and Pacifica {indecency]," he said, "dramatic technological advances have eviscerated the factual assumptions underlying those decisions. Moreover, traditional broadcast television and radio are no longer the "uniquely pervasive" media forms they once were.

Thomas said for those reasons, he is open to reconsideration of Red Lion and Pacifica in the proper case.

The Supreme Court could still address the constitutionality of the FCC's indecency regime if it decides to take the Janet Jackson case. The FCC has asked the court to hear a challenge of the Third Circuit Court of Appeals' decision that the FCC's $550,000 indecency fine against CBS stations for the Janet Jackson Super Bowl reveal was arbitrary and capricious. There is also another case in involving ABC and NYPD Blue that is currently being considered by the same Second Circuit court that now has to reconsider its profanity decision.

The FCC asked the court to hold that petition in abeyance until after it had decided the Fox case. The FCC's argument in that decision was also that it provided a "legitimate and rationale" basis for what was essentially a crackdown on fleeting nudity.

In a statement Tuesday, Fox said, "While we would have preferred a victory on Administrative Procedure Act grounds, more important to Fox is the fundamental constitutional issues at the heart of this case. Fox is looking forward to the 2nd Circuit's consideration of the very important issues at stake in this case, and are optimistic that we will ultimately prevail when the First Amendment issues are fully aired before the courts."

The Second Circuit signaled that the FCC might have a high bar there if it were to consider the constitutional issues. That court said that it was "skeptical that the commission [could] provide a reasoned explanation for its 'fleeting expletive' regime tht would pass constitutional muster."

"Today's Supreme Court decision in Fox is a big win for America's families," said acting FCC chairman Michael Copps. "The Court recognized that when broadcasters are granted free and exclusive use of a valuable public resource, they incur enforceable public interest obligations. Although avoiding the broadcast of indecent language when children are likely to be watching is one of those core responsibilities, few can deny the blatant coarsening of programming in recent years. The Court's decision should reassure parents that their children can still be protected from indecent material on the nation's airwaves. "

Also applauding the decision was Senate Commerce Committee chairman Jay Rockefeller, who has pushed to give the FCC even more content control by extending its authority to TV violence. "I am encouraged by the Supreme Court's decision today to reverse the ruling by the 2nd U.S. Circuit Court of Appeals on regulating broadcast indecency standards. We must be doing more, not less, to give the FCC and parents all across America the resources they need to protect their children from indecent programming."

John Eggerton
John Eggerton

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.