CBS says the FCC can try to run from court review of its indecency policy, but it can't hide.
CBS weighed in with the U.S. Court of Appeals for the Second Circuit in New York late Friday on the broadcaster challenge to the FCC's March profanity rulings profanity. It tasked the court to find the FCC's move illegal while granting the plaintiffs "such other relief as may be deemed proper."
There is something profoundly disturbing abot the FCC's approach to this case," said CBS. "It is grounded in the cynical notion that a government agency is not only free to punish speech protected by the First Amendment against just such infringement, but that it may do so without fear that its policies will be scrutinized by the federal courts. The FCC is assuredly wrong on both counts."
The FCC back in March found four broadcasts profane and indecent, two by Fox and one each by ABC and and CBS. It later reversed itself on the CBS and ABC profanity findings. ABC has since backed away from the challenge while CBS has continued to push it.
CBS also argues that the FCC is on the wrong track when it asserts that its test for regulating indecent speech has only to meet the court's intermediate scrutiny test rather than the strict scrutiny test.
The first is the most rigorous test for speech regulation and requires the government's interest in regulating speech to be compelling and its means the "least restrictive" possible. With intermediate scrutiny, the government's interest must only be important and the means substantially related to effecting that end.
And no matter how you parse the scrutiny, CBS concludes, the new policy on fleeting expletives is unconstitutional because it exceeds its authority beyond that granted by the Supreme Court in the Pacifica (so-called "seven dirty words") case.
CBS is also challenging the FCC's Janet Jackson fine in the Third Circuit Appeals Court in Philadelphia. the FCC has to file its brief in that case Dec. 26.