Fox, FCC Square Off Over Indecency

Bush administration argues before Supreme Court for tougher rules

The Bush administration, through the Solicitor General's office, is mounting a broad defense of the FCC's right to levy fines for language or actions it deems indecent.

Meanwhile, Fox last week went to another court to argue the FCC overstepped its boundaries and violated Fox's First Amendment rights.

According to one prominent First Amendment attorney, if the administration gets its way in the Supreme Court case involving swearing on Fox's Billboard Awards broadcast (by Cher in 2002 and by Nicole Richie in 2003), it would be almost impossible to challenge an FCC indecency decision going forward.

On June 2, the Solicitor General's office, essentially the Justice Department lawyers who argue high-profile government cases, filed the opening brief in the FCC's Supreme Court challenge of a lower-court decision smacking down its crackdown on cussing. That lower court called the FCC findings arbitrary and capricious.


Solicitor General Paul Clement defended the FCC's determination that the f-word has a sexual connotation even when it is used in a nonsexual way—as, say, an intensifier or an insult.

"The commission, after having studied the issue, is in a better position to evaluate the connotations of language," the brief said.

That reasoning troubles attorney John Crigler, a partner with Garvey Schubert Barer and a veteran defender of broadcast content.

The Bush administration's argument "requires us to assume that the FCC's expertise extends to 'contemporary values,' not only for the broadcast medium, but for the general population," Crigler says. "That would make it virtually impossible to challenge any FCC indecency ruling because the rulings would turn on 'expert' administrative opinions entitled to deference and not susceptible to disproof."

Fox has until July 2 to counter the FCC's arguments in the court, but a source says it will ask for and likely will be granted an extension until Aug. 2.

But Fox already put in its two cents' worth and more in the U.S. Court of Appeals, D.C. Circuit. It last week requested the court to dismiss the FCC's $91,000 fine against Fox stations for airing pixilated nudity on the 2003 reality show, Married by America. The FCC would have no power to regulate indecent images if Fox wins its argument in that case, but it may be a long shot.

Fox says the FCC's indecency-enforcement power applies only to indecent "language" since that is what the statute says.

The relevant statute, the company notes, prohibits broadcasters from using the airwaves to "utter...indecent...language, not to transmit indecent pictures."


Getting a court to buy that will be a stretch, says one veteran communications attorney who asked not to be named.

"The commission up until now has always been successful in extending the statutory language in the Communications Act [which dates back to the pre-TV days of the 1920s] to television and images," he says.

Fox also argues that the show was not indecent anyway since the FCC did not allege that it depicted any sexual activity, and what nudity there was had been pixilated.

Fox also says the FCC ruling violated the First Amendment.

Fox doesn't have a monopoly on indecency fights. Briefs from ABC and its affiliates are due June 20 in the Second Circuit Court of Appeals in New York in their challenge of the FCC's $1 million-plus fine for a 2003 episode of NYPD Blue that showed too much of a woman's backside and side for the FCC's liking.

And there's no word yet out of the Third Circuit in Philadelphia on CBS's challenge to Janet Jackson's Super Bowl infamous wardrobe malfunction in 2004.