The Obama Justice Department has asked the Supreme Court to uphold the FCC's indecency enforcement regime, saying a lower court ruling in two cases finding the policy unconstitutional conflicts with other lower court and Supreme Court rulings, and that the policy is not unconstitutionally vague, as well as warns that the repercussions of letting the lower court decision stand are "sweeping and unavoidable."
The filing came Thursday after Justice got two extensions of the filing deadline, the latest was up April 21.
The case stems from the FCC's conclusion that the "vulgar expletives" uttered by Cher and Nicole Richie during live Fox broadcasts of the Billboard Music Awards in 2002 and 2003 were a violation of community standards for broadcasting and incorporates another decision--a fine against ABC--based on that finding.
The High Court had signaled back when it upheld the FCC's decision on other grounds that it expected to get the case back. The court generally takes cases where a government rule has been declared unconstitutional, as was the case when last July, the Second Circuit Court of Appeals threw out the FCC's indecency enforcement policy as unconstitutionally vague and chilling.
It then applied that decision in throwing out the FCC's $1.4 million fine against 52 ABC affiliates for a 2003 broadcast of NYPD Blue.
Justice says the Second Circuit was wrong in both decisions, and that leaving those decisions to stand would "preclude the FCC from carrying out its statutory responsibility to ensure broadcasters honor their long-standing obligation not to air indecency material."
"The court of appeals had no sound basis for concluding that the commission's indecency policy, as embodied in its 2001 industry guidance, failed to give 'persons of ordinary intelligence' in the highly sophisticated broadcast industry 'fair notice of what is prohibited,'" Justice said.
The Parents Television Council, which had been pushing for the High Court review, was relieved. "PTC members and families across the country called on the Obama Administration to stand up for broadcast decency," PTC said in a statement. "Today, their voices were heard. Without an appeal before the April 21 deadline, the FCC stood to lose all Congressionally-mandated authority over indecent broadcast TV content."
Complaints generated by PTC, along with pressure from congress, were instrumental in getting the FCC to crack down on indecency enforcement, particularly fleeting language and nudity.