Fox Takes Aim at Indecency Enforcement Regime

Asks Second Circuit appeals court to vacate Supreme Court's remand order and stand by its critique of the FCC

By John Eggerton -- Broadcasting & Cable, 9/16/2009 4:58:37 PM

Fox took aim at both the FCC and the disparate First Amendment treatment of broadcast media in its brief to the Second Circuit, saying that the appeals court should take up the constitutional question of whether broadcasters' speech "should be entitled to the same First Amendment protection as other media."

Fox asked the court to vacate the remand order by the Supreme Court and stick to its guns.

The company suggested it was only a matter of time before the FCC's fleeting profanity, and by extension nudity, enforcement regime was toppled. "[T]he Supreme Court's reversal of this Court's prior administrative law decision merely puts the FCC's newly expanded indecency regime on temporary life support. It does nothing to heal the terminal condition of the FCC's efforts to regulate the content of broadcast speech."

The Second Circuit overturned the FCC decision calling it arbitrary and capricious, but the Supreme Court reversed that decision and sent it back to the court for another try. Fox says the court got it right the first time.

In the brief, Fox said the FCC, even under current indecency rules, was out of line to conclude that swearing by Nicole Richie and Cher in broadcasts of 2002 and 2003 Billboard Music Awards was indecent.

Fox's principal argument is that the the finding was unconstitutional because the FCC did not take into account that "both expletives were unscripted and it was undisputed that Fox had no notice and did not intend for the words to be broadcast."

Fox says that to be found indecenct, the broadcaster must have acted with "scienter," which it says means "knowledge of and intent to broadcast the specific content that is alleged to be indecent--not just the intent to broadcast the program regardless of the actual content."

Fox says it had its bases covered in several ways. "Given Fox's efforts to edit the potentially objectionable content during the live broadcast using a delay mechanism, craft a script free of such expletives, provide ratings for both programs such that parents were empowered to block them using the V-chip, and not air the language in broadcasts in later time zones, it cannot be seriously argued that Fox knowingly or intentionally broadcast indecent language," Fox said.

It also argued that the FCC had redefined profane beyond its statutory meaning of sacrilegious.

Fox said the FCC had "lost sight of what the First Amendment demands," saying it would be hard to imagine a regime more at odds with that freedom than the current one.

The company further argued that the justifications for lesser First Amendment protections for broadcasters--that they are uniquely pervasive or uniquely accessible to children--no longer exist, if they ever did.