DOJ Warns Supremes of Potential Undermining of FCC Indecency Regulations

Justice Department Tells Supreme Court Federal Communications Commission's Power to Enforce Profanity, Indecency Policies Is in Jeopardy

By John Eggerton -- Broadcasting & Cable, 2/21/2008 3:44:00 PM

The Justice Department told the Supreme Court that unless it weighs in on the Federal Communications Commission's fleeting profanity-enforcement regime, the FCC's regulatory power will be "severely undermined," even in cases of nonfleeting profanity.

In their filings asking the court not to hear the case, the networks said that since the lower court (Second Circuit Court of Appeals in New York) remanded the FCC indecency finding, against cussing on Fox's Billboard Awards show, back to the commission for a better explanation for its decision to start punishing fleeting profanities, the High Court should await the FCC's response.

They also said the Second Circuit got it right when it concluded that the FCC had "failed to provide a reasoned basis for reversing its longstanding indecency-enforcement policy with respect to isolated and fleeting expletives."

According to a copy of the document, Solicitor General Paul Clement, in a reply brief to the court late last week, said the Second Circuit decision left the FCC little room to modify its policy other than two extremes, adding that the court's decision "attempts to coerce the commission to choose between allowing one free use of any expletive, no matter how offensive or gratuitous, or adopting a blanket prohibition on any use of expletives."

If that is the case, Clement said, then the FCC would not be able to find large portions of the George Carlin "seven dirty words" monologue indecent, which flies in the face of the Supreme Court's Pacifica decision upholding the FCC's ability to regulate indecency generally and those words in particular.

FCC chairman Kevin Martin has also said he didn't see how the agency could justify its indecency policy to the court given that the decision essentially signaled that the court didn't see how the policy could be justified.

Clement said the lower-court decision "effectively prevents the commission from carrying out its charge, and yet it is the commission that will be held accountable for the coarsening of the airwaves."

Not surprisingly, the reply brief echoed Justice's argument in seeking court review -- on behalf of the FCC -- in its initial filing Nov. 1.

The Supreme Court scheduled Feb. 29 as the day the judges will conference to decide whether to take the case, although that date is not set in stone. Given the judges' life tenure and busy schedules, they can do what they want, one veteran court watcher said, and it would not be unusual for them to put the decision off for another day.