As promised, the Justice Department asked the Supreme Court Thursday to review a lower court's decision that the Federal Communications Commission failed to justify punishing broadcasters for on-air swearing, saying that, as it stands, broadcasters have a pass to swear at will, and the FCC's ability to regulate indecency at all is at stake.
In its petition to the court Thursday, Justice said the FCC explained its decision and the lower court -- while remanding the FCC's decision back to the commission for better justification -- essentially said it wasn't likely to be able to justify it. And, importantly, it said that the lower-court ruling was in conflict with the Supreme Court's Pacifica decision upholding the commission's power to regulate indecency.
How the FCC is able to exercise that power, or if it can at all, could be at issue if the Supremes take the case.
"The court of appeals’ rejection of the commission’s contextual analysis strikes at the heart of broadcast indecency regulatory framework," Justice said. “The Supremes are more likely to take cases with constitutional implications" -- in this case, First Amendment protections.
Justice also said the decision was in conflict with another appeals-court decision. One of the Supreme Court's functions is to resolve disputes between appeals courts, as well as conflicts with its own prior decisions.
The Fox case involved Fox's 2002 and 2003 airings of the Billboard Music Awards, which included airing the words "shit" and fucking" from Nicole Richie and Cher. The FCC found the words indecent as aired. Fox appealed, and the Second Circuit Court of Appeals concluded that the FCC's decision was arbitrary and capricious and the commission had not sufficiently defended what was a change in policy on so-called fleeting expletives.
In a stinging rebuke, the Second Circuit ruled that the FCC had not produced "any evidence that suggests that a fleeting expletive is harmful." The appeals court also had problems with the FCC's argument that the words always had a sexual connotation.
It also was not persuaded by the FCC's declaration that it was regulating fleeting expletives out of concern for the public's exposure to the language on the airwaves, since the commission did not prohibit them in every circumstance -- for example, in reporting in a news story about the oral arguments in which the language was used in court.
The FCC had said that it wanted to protect viewers from the "first blow" from even fleeting cusses, but the court wondered why the blow would be any less if it came during a news story.
The FCC argued that it needed to take context into account.
In asking for High Court review, Justice said the Second Circuit Court of Appeals decision was in direct opposition with the Supreme Court's decision in Pacifica, in which the court said "context is all-important."
“By faulting the commission for exercising the contextual judgment that Pacifica mandated," said Justice in its petition, "the court of appeals appears to have put the FCC to a choice between allowing one free use of any expletive, no matter how graphic or gratuitous, or else adopting a (likely unconstitutional) across-the-board prohibition against expletives.”
Justice also argued that the FCC made a thorough, reasoned explanation of its "change in policy."
Since the Second Circuit remanded the decision back to the FCC for better justification, akin to the remand of the FCC's media-ownership rules, Justice conceded that this was not a case the High Court might ordinarily take.
But it pointed out that it was something of a Sisyphean errand given that the court also said the FCC probably couldn't come up with a sufficient defense.