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C-SPAN Seeks Oral Argument Tapes in Fox Swearing Case

Public Affairs Network Not Likely to Face Same FCC Trouble for Airing the Language as News Coverage 10/23/2008 06:46:00 AM Eastern

C-SPAN has asked for access to expedited audio tapes of the Nov. 4 Supreme Court oral argument in the case of the FCC vs. Fox over swearing in a Fox Billboard Awards Show broadcast.

That's according to C-SPAN spokesman Peter Kiley, who said that the court has yet to respond, though he said that was not surprising. Kiley said the court eventually makes tapes of its oral arguments available as a matter of course, but not until after, sometimes weeks after, the end of the session in July.

If the court accedes to C-SPAN's request for expedited release, the cable public affairs network will likely get the tapes not long after the argument concludes on Nov. 4. C-SPAN will air it as soon as possible that day. Kiley said it will air unexpurgated, "as it was said in the court," but likely with a warning or graphic about the language if necessary. It will also air on C-SPAN's XM channel as well as on C-SPAN's FM station in Washington. That means C-SPAN could broadcast the same language Fox got in trouble for broadcasting.

C-SPAN almost certainly would not run into any trouble itself from the FCC if it aired the tapes on C-SPAN radio.

In the FCC's argument in the profanity case before the Second Circuit, the government attorney said the FCC would likely not find coverage of the oral argument indecent--in which swear words were used by judges and the Fox attorney and also carried unexpurgated on C-SPAN and C-SPAN radio--or if the coverage was picked up for the local news, including if the offending Billboard Awards broadcasts were re-run as back story. .

There is a higher indecency threshhold for news coverage, but it is not an absolute exemption. C-SPAN televised Fox's oral argument in that Second Circuit's hearing of the profanity case. It was that victory--the court said the FCC had been arbitrary and capricious in failing to justify its pursuit of fleeting cussing--that the FCC appealed to the High Court and which Fox will be defending Nov. 4.

C-SPAN also tried to get permission to televise the Third Circuit's oral arguments on the infamous Janet Jackson/Justin Timberlake reveal--which resulted in a similar defeat for the FCC--but that court denied the coverage request.

The Supreme Court does not allow TV cameras or live audio coverage, but has made tapes available on an expedited basis for some key cases, most notably the 2000 Bush vs. Gore recount decision.

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