Fox made its case in the Supreme Court Tuesday, hoping to convince the court to uphold a lower court ruling that the FCC had been wrong to find swearing on Fox's Billboard Awards broadcast (by Cher in 2002 and by Nicole Richie in 2003) indecent.
The Justices were described as active and engaged, asking some tough questions of Fox lawyers that suggested they were looking at the case from the standpoint of whether the FCC had complied with the Administrative Procedures Act, which requires it to give fair notice and explanation of changes in policy, if there have been any changes. Both of those issues are central to the Fox case.
The Supreme Court's decision could also have wider implications for the FCC's crackdown on fleeting nudity as well as swearing.
According to one report from a media company representative in the court, the questioning Chief Justice John Roberts and Justice Antonin Scalia raised some tough questions about whether the FCC had really changed its policy, and whether, in fact, it had sufficiently justified that policy. When Fox argued that society had become more tolerant of language in the 30 years since the Pacifica decision on broadcast profanities, Scalia asked whether the network might have had something to do with that.
"Justice Ginsburg appeared to be squarely in our camp," said the representative. "Scalia, probably on the other side." Ginsburg said there was no "ryhme or reason" behind the FCC finding swearing in a documentary about the blues indecent, but not finding it indecent in WWII film Saving Private Ryan.
The questioning was tough but fair, said the media company executive, adding that they were encouraged but that it was hard to predict. Others saw the tough questioning from Roberts and Scalia as suggesting Fox might have an uphill climb.
In making their case, Fox attorney Carter Phillips pointed to a noncommercial TV station in Vermont that refused to allow a candidate to debate on air because he had used expletives in a previous forum. The network also said it would not have aired the expletives had it had the choice--it was a live, unscripted broadcast.
The public will have to rely on reports from others until the transcript is released since the High Court denied a request by C-SPAN to release the tapes from the argument early. The court has done so in the past, but one theory was that it did not want to distract from Election Day. Another was concern about the profanities that might be used during a hearing on profanity.
Fox is looking for the court to go beyond the lower court's narrower ruling to the larger question of whether broadcasters should be subject to special First Amendment treatment—Fox would argue mistreatment—because of a "unique pervasiveness" that Fox lawyers argue no longer applies in today’s media environment.
That would mean the court would have to rethink its 1978 Pacifica decision, in which it upheld the FCC's ability to regulate indecent content based on its unique pervasiveness and availability to kids.
Fox had not actually asked for the High Court fight. The FCC asked for Supreme Court review after the Second Circuit Court of Appeals ruled that the FCC had been arbitrary and capricious in applying a fleeting profanity standard without sufficient notice or explanation after years of taking a relatively hands-off approach.
The government defended its 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 Solicitor General's office had argued in its written brief to the court.
Peter Chernin, president of Fox parent News Corp., told B&C recently that if the court decision goes against the network, it could have a significant impact on Fox's business and might prompt the company to rethink how it covers sports and news for fear of running afoul of the FCC's fleeting enforcement regime.
According to one prominent First Amendment attorney, if the Supreme Court reversed the lower court decision, it would be almost impossible to challenge an FCC indecency decision going forward.
The decision could also have bearing on thedecision by the Third Circuit Court of Appeals that the FCC's fine for the fleeting nudity in the Janet Jackson/Justin Timberlake Super Bowl halftime incident was similarly arbitrary and capricious.
The FCC's indecency enforcement regime has been pretty much in limbo since the lower courts ruled against it. It is tough to handicap how a court will rule by the questions judges ask, since they often play devil's advocate, with difficult questions intended to test arguments rather than betray any bias toward one position or another.
One bright spot for broadcasters could be that all five of the Justices that overturned a cable-related FCC content regulation are still on the court. Justice Anthony Kennedy, for instance, writing the majority opinion in a case that overturned an FCC restriction on adult cable speech, said: "Basic speech principles are at stake in this case [Playboy vs. FCC]. When the purpose and design of a statute is to regulate speech by reason of its content, special consideration or latitude is not accorded to the Government merely because the law can somehow be described as a burden rather than outright suppression. We cannot be influenced, moreover, by the perception that the regulation in question is not a major one because the speech is not very important. The history of the law of free expression is one of vindication in cases involving speech that many citizens may find shabby, offensive, or even ugly."
All five of the justices who voted to overturn that FCC content restriction—Anthony Kennedy, John Paul Stevens, David Souter, Clarence Thomas and Ruth Bader Ginsburg—were hearing Fox make its arguments for why the FCC was out of bounds in this case.
In Playboy, the majority wrote, "the Government cannot ban speech if targeted blocking is a feasible and effective means of furthering its compelling interests." One of the network arguments is that the V-chip/ratings system gives parents similar control over broadcasts as cable blocking technology gives parents over multichannel video fare.
The court in Playboy also said that viewers didn't necessarily have to use the blocking technology so long as it was available to them. It also raised the issue of the fleetingness of the adult content that could reach children as a mitigating factor, or at least one whose relative impact had not been sufficiently explored, saying "sanctionable signal bleed [briefly unscrambled adult content] can include instances as fleeting as an image appearing on a screen for just a few seconds."
Both sides were lining up Tuesday to talk about the importance of the case.
"This case will have profound ramifications for the future of the First Amendment and the regulatory treatment of old and new media platforms alike," said Adam Thierer of The Progress & Freedom Foundation, a think tank. "The FCC's new approach has created a confusing and arbitrary regulatory atmosphere that leaves many speakers wondering what they can and cannot say on broadcast television and radio stations today."
"The PTC has been at the center of this battle and has urged the Supreme Court to recognize the FCC’s authority to hold the networks accountable for ignoring the broadcast decency law at the expense of children and families," said the Parents Television Council, whose member complaints helped drive the FCC crackdown.