According to attorneys involved in the challenge to the
FCC's indecency enforcement regime, they should know by Monday, June 27,
whether or not the Supreme Court will hear the FCC's challenge to a lower court
ruling that that regime is an unconstitutional restriction on free speech.
The Supreme Court has scheduled the case for conference
June 23, which is when the Justices will get together to discuss the
government's request that it reverse a lower court ruling in Fox vs. FCC
that struck down its indecency enforcement regime. Traditionally, the court
then announces the following Monday (June 27) cases to be, or not to be, on its
docket. It is widely expected to agree to hear the case.
The FCC's indecency enforcement regime has been pretty
much in limbo for the last half decade as its fleeting profanity and nudity
enforcement regime was running a legal gauntlet. Broadcasters argue the FCC has
not given them sufficient guidance on what it will find indecent, including
ruling that swearing in a blues documentary was indecent, while finding that
similar language in a scripted program -- Saving
Private Ryan -- was not.
The two most recent hits to the FCC's enforcement powers
were the Second Circuit Court of Appeals decision that that regime was
arbitrary and capricious, and then, when the Supreme Court said that was notthe case,
the follow-up decision last July that the FCC's indecency enforcementregime in general, was unconstitutionally vague.
It is that latter decision, by the Second Circuit Court
of Appeals, that the Supremes will decide whether to hear. The court is widely
expected to take the case, since it anticipated back when upholding the FCC
decision-making process -- the finding that the regime was not arbitrary and
capricious -- that it would likely be asked to rule on the overarching question
of its constitutionality.
The Fox vs. FCC 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.
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