FCC May Win Profanity Appeal, Say Attorneys

As Fox hopes Supreme Court rules against FCC's indecency regime, First Amendment lawyers say FCC may prevail in narrow ruling

In the best of all possible worlds for Fox, the Supreme Court would order the FCC to get out of the indecency-regulation business. But in oral arguments last week, most of the justices seemed to take a narrow view of the case. Sizing it up, a couple of veteran First Amendment attorneys even suggested the FCC may well win its appeal.

Fox's attorney, Carter Phillips, and Solicitor General Gregory Garre squared off in oral arguments before the high court. The broader issue was whether the FCC had justified to broadcasters its decision to start cracking down on profanity on broadcast TV between 6 a.m. and 10 p.m., when the FCC can regulate indecent content.

More specifically at issue is an indecency finding against Fox for airing the words "fucking" and "shit" on Billboard Awards broadcasts in 2002 and 2003. (In arguing the case, lawyers from both sides and the justices used the more discreet "f-word" and "s-words).

Fox has conceded the language was inappropriate and would not have aired it if the network had control over the live broadcast, in which Cher and Nicole Richie veered off script. But Fox argued further that the FCC is off-base in pursuing fleeting profanities.

Regulators are allowed to change policies, but a lower court had ruled that the FCC had been "arbitrary and capricious" in making the change because it had not sufficiently justified it. A different court came to essentially the same conclusion about the FCC's fining of CBS stations for the Janet Jackson Super Bowl revealed-breast stunt.

That left the FCC's indecency policy in limbo and prompted it to seek a Supreme Court appeal of the Second Circuit's smackdown of the Fox ruling.

With the caveat that nobody ever retired from betting which way the court will vote, Andrew Schwartzman, whose Media Access Project represents TV and film producers opposed to the indecency crackdown, and John Crigler, a First Amendment attorney whose clients have included Pacifica (which owns the radio station that originally ran George Carlin's infamous "seven dirty words"), both said that they thought the case would be decided narrowly but that the FCC had a good chance of winning.

"If you put a gun to my head," Schwartzman said, "I would say the FCC would win a narrow decision." Crigler agreed.

"They seemed not at all interested in a constitutional decision," said Schwartzman after the arguments. "They seemed quite interested in a very narrow administrative law decision. And they are clearly troubled by a result that allows the f-word into the living room."

"Decided narrowly" means that the court would confine its decision to whether the FCC had met the requirements of the Administrative Procedures Act that a regulatory body give fair warning and a reasonable explanation when it changes policy, rather than go to a broader consideration of the underpinnings of the FCC's indecency enforcement authority.

According to a transcript of the arguments, Justice Antonin Scalia was the toughest on broadcasters, while one media executive said that Justice Ruth Bader Ginsburg seemed "squarely in our camp." 

But outside of those two, there were a lot of questions suggesting that the justices found some merit in the government’s argument that it had adequately explained its policy.

Fox attorney Phillips warned that punishing stations because of the complaints of relatively few is in effect “a heckler’s veto” Scalia interpreted that to mean stations needn’t worry about viewers bothered by expletives, “and you can’t take our positions into account because you are giving effect to a heckler? I don’t think so.”

In his argument, Solicitor General Garre suggested Fox, and the other networks supporting it, sought a world in which “Big Bird [would be] dropping the f-bomb on Sesame Street.” Fox said it was looking for the FCC not to suddenly change a policy on regulating speech without sufficiently justifying it.

There were some encouraging observations from the justices that they may render a decision that is broader than just a procedural tweak of the FCC’s indecency rules. For example, Chief Justice John Roberts said, “It seems to me that the commission might not be accomplishing terribly much if it regulates a particular medium when all sorts of other media are available that don’t have the commission’s oversight.” That could either mean that Roberts at the moment was mulling the unfairness of an indecency rule only for broadcasters—or wondering if cable should be under the same rules.