There was an article several weeks back in the newspaper—yes, people still read those—about a group of legal scholars suggesting the Supreme Court shouldn't be appointed for life.
After last week's decision by the court that the FCC had justified an indecency finding against swearing on Fox stations, we can understand why. As a close call (5-4) on strictly procedural grounds, with a half-dozen different opinions suggesting a divided court, it left broadcasters without clarity on their continued content overregulation and did nothing to settle the constitutional question of whether the FCC should be regulating in that area at all.
The court concluded that the FCC had no higher hurdle when explaining a change in policy regarding content regulation than one involving, say, the change in a TV station's antenna height. That means future commissioners can change indecency policy with no more justification than “made sense to us.” That is too low a bar.
The good news is that the case has been sent back to the Second Circuit, which can now consider the constitutional issues it did not take up the first time. If it does, broadcasters could be in good shape. That court signaled in language that was outside the opinion—since it was not dealing with the constitutional question—that if it did consider the constitutional underpinnings, the FCC would probably lose.
Then the case would almost certainly go back to the Supremes. Justice Antonin Scalia signaled as much. Prospects there could be better next time.
There were four dissenters who thought the FCC's decision to start pursuing fleeting expletives was arbitrary and capricious. There was even help from a member of the majority, Clarence Thomas, who made it clear that if the case comes back with the constitutionality of content regulation teed up, he is ready to take aim at previous court decisions.
That is an opinion for broadcasters to hang their hopes on. If the dissenters in last week's case agree, that would be enough to turn the court in broadcasters'—and the First Amendment's—favor.
For now, broadcasters will have to keep their fingers a little closer to that seven-second delay button, and smaller stations may have to shell out thousands for their own bleeping/delay equipment or avoid live coverage if they don't want to risk six-figure fines.
That was a point made by the four dissenting justices, led by Stephen Breyer, only to be dismissed by Scalia in a comment aimed squarely at Hollywood: “We doubt, to begin with, that small-town broadcasters run a heightened risk of liability for indecent utterances. In programming that they originate, their down-home local guests probably employ vulgarity less than big-city folks; and small-town stations generally cannot afford or cannot attract foul-mouthed glitteratae from Hollywood.”
Term limits, anyone?