Supreme Court Makes No Decision on Fox Profanity Case

Supremes Punt on Profanity for Now But Could Take Case at a Later Date 3/03/2008 07:45:00 AM Eastern

The Supreme Court apparently hasn't yet decided whether to hear the appeal of a lower court's ruling that the Federal Communications Commission's fleeting-profanity policy was insufficiently justified, arbitrary and capricious, according to the Supreme Court practice of law firm Akin Gump, which posted the notice on, its Supreme Court-monitoring blog.

Supreme Court

The court made the "no decision" Friday in a private conference among the justices, during which they decided what cases they will slate for hearing. In this case, they did not say they would take the appeal, but the case was not on the list of appeals they had denied, either, so they could still decide to hear it.

According to one veteran court watcher, "We'll have to go through this all over again in two weeks." It's not clear why they decided to take a pass. The Supremes make some disposition of the vast majority of cases they schedule for decisions at such conferences, one veteran communications attorney said, although another said it was not that unusual to punt.

The Justice Department and FCC told the Supreme Court in arguing for it to take the case that unless it weighed in on the FCC's fleeting profanity-enforcement regime, the commission's regulatory power will be "severely undermined," even in cases of nonfleeting profanity.

Fox, ABC, NBC and CBS countered that the Second Circuit got it right when it concluded that the FCC "failed to provide a reasoned basis for reversing its long-standing indecency-enforcement policy with respect to isolated and fleeting expletives."

At issue were profanities uttered by Nicole Richie and Cher in 2002 and 2003 during Fox broadcasts of the Billboard Music Awards, as well as those on CBS' Early Show. Kevin Martin was not FCC chairman at the time of the violations, but he has been vigorous in his support of the fleeting-profanity and nudity enforcement policy.

The FCC found the utterances indecent as part of an omnibus March 2006 order that did not levy fines against some shows but indicated which shows the commission deemed indecent in an effort to provide guidlines for broadcasters. Martin said at the time that broadcasters had asked for such guidance.

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