High Court Takes Case

FCC profanity policy in limbo

Fox executives said last week that a ruling by the Supreme Court over so-called “fleeting profanities” could “change the future of live television.” That sentiment echoed throughout the TV industry as entertainment companies tried to make sense of the latest whipsaw ruling in the government's effort to crack down on vulgar speech on public airwaves.

Last week the Supreme Court agreed to hear the FCC's appeal of a lower-court ruling that the commission's fleeting-profanity policy was insufficiently justified, arbitrary and capricious. The court will likely hear the case in the fall, which means that the FCC's profanity-enforcement regime remains in limbo until then. Depending on how broadly the Supreme Court rules on the case, it will either go a long way toward cleaning up the FCC's confusing indecency rules or just tidy up a small corner of the problem.

“While the FCC has a statutory duty to enforce the indecency laws, I continue to believe that all of us—government, industry and parents—have a role to play in protecting our children from inappropriate material,” FCC Commissioner Michael Copps said. “The Court's review will hopefully bring additional clarity to concerned citizens and broadcasters alike.”

In arguing for the Supreme Court to take the case, the Justice Department and FCC said that unless the Court weighed in on the FCC's fleeting-profanity-enforcement regime, the commission's regulatory power will be “severely undermined,” even in cases of non-fleeting profanity.

The Court has already held that blocking technology in cable is a better way to control content than government-imposed programming restrictions.

“The issue now is how far the parties can persuade the court to go,” said John Crigler, a partner with Garvey Schubert Barer and a prominent First Amendment attorney. At issue, he said, “is whether the commission gave a rational explanation for its regulation or whether the court will go further and reach constitutional underpinning of indecency regulation itself.”

Meanwhile, the networks are trying to figure out what to do if the Court sides with the FCC, and how far the decision could reach. “There would have to be a delay on live sports, chilling effects would continue, live entertainment would be affected,” says Scott Grogin, a spokesman for Fox. “It's an imperfect process; there is no way to have a machine monitor live programming and be perfect. It could change the future of live television.”

Robin Bronk, executive director of the non-profit Creative Coalition, agreed: “I think it will be a landmark case. It will set precedent.”

Fox, ABC, NBC and CBS had argued, in asking the Court not to hear the government's appeal, that the Court of Appeals' Second Circuit had gotten it right when that court concluded the FCC had “failed to provide a reasoned basis for reversing its long-standing indecency-enforcement policy with respect to isolated and fleeting expletives.”

The FCC had argued in its filing that the Second Circuit decision meant the commission could no longer take context into account when regulating indecency, which would put the decision in conflict with the Supreme Court's decision in the Pacifica case (the “seven dirty words” case).

Fox and company countered that this was a fundamental misreading of the case, and that the Second Circuit was asking the FCC to better justify its change in policy after 30 years of not cracking down on isolated or fleeting profanities.

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

“The commission, Congress and, most importantly, parents understand that protecting our children is our greatest responsibility,” Martin said in a statement responding to the Supreme Court case. “I continue to believe we have an obligation then to enforce laws restricting indecent language on television and radio when children are in the audience.”

Sen. Jay Rockefeller (D-W.Va.) tried to resolve the issue by giving the FCC clear powers to regulate fleeting words and images. He introduced, and the Senate Commerce Committee approved, the Protecting Children From Indecency Programming Act (S. 1780) after the appeals court ruled against the FCC. The bill got no further, however, with the Senate waiting to see what happened in the courts.

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