The government fired its opening shot in defense of the Federal Communications Commission's crackdown on cussing on TV -- Fox in particular -- saying that the Second Circuit Court of Appeals made a mistake when it concluded that the FCC violated the Administrative Procedures Act by not sufficiently justifying its change in regulatory policy.
In its opening brief to the Supreme Court, which agreed back in March to hear the case, the Solicitor General's office (part of the Justice Department) argued that the FCC was within its authority to find two broadcasts that aired on Fox indecent because they included swearing by Nicole Richie and Cher during the Billboard Awards.
The brief accused the lower court of unfounded criticisms and inappropriate second-guessing of the FCC's policy judgments, saying instead that the commission provided "a reasoned explanation of the change."
The FCC did not fine Fox because the 2002 and 2003 incidents occurred before it reversed its decision in the Bono case and found that the singer's fleeting f-word during the Golden Globe Awards was indeed indecent. The Solicitor General's brief called that earlier policy the "one-free-expletive rule" and said the FCC was justified in reversing it.
The Second Circuit Court of Appeals found the Fox decision arbitrary and capricious, saying that the FCC did not sufficiently justify its reversal -- in Bono -- from previous decisions that found the fleeting, adjectival uses of the word and others not to be indecent.
The appeals court also took issue with the FCC's assertion that swearing constituted a "first blow" to the audience, particularly children, which the agency needed to protect them from. Since the commission did not find all uses of the words indecent -- say, in Saving Private Ryan -- the appeals court found that the first-blow doctrine "bears no rational connection to the commission's actual policy regarding fleeting expletives."
Solicitor General Paul Clement and his staff countered in the brief, filed June 2, that the Second Circuit missed the point of the policy change, which was to no longer make a single factor -- its fleetingness -- dispositive in a determination of indecency.
He said the FCC was within its right to find that the earlier policy did not square with its concern for protecting audiences likely to include children (broadcasters are free to air indecent programming between 10 p.m. and 6 a.m.).
"The commission’s policy simply takes into account that some blows are likely to be more harmful to the audience (including children) than others," Clement wrote, "and even more to the point that in some contexts a first blow can be sufficient."
The brief argued that "nothing in the APA requires the commission to operate with the blunt instrument of an 'all-or-nothing' policy in this area."
Clement's office also 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.
In addition to asking the Supremes to reverse the lower-court finding, Clement and company also asked the court to refrain from addressing broader questions of the constitutionality of the indecency-enforcement regime and instead to remand the case back to the Second Circuit to rule on those First Amendment challenges filed by broadcasters against the entire indecency-enforcement regime.
The Second Circuit did not address those in its opinion-- courts tend to rule as narrowly as possible -- but did raise constitutional questions in nonprecedential parts of that opinion.
Currently, respondent briefs are due the first week of July, although Fox could well ask for an extension. The case won't be argued until October or November, with a decision unlikely before 2009, one veteran court observer said.