Supremes Will Rule on Constitutionality Of FCC Indecency Enforcement Regime

Court agrees to hear challenge in Fox v. FCC
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The Supreme Court will decide whether the FCC's indecency enforcement regime is unconstitutionally vague and chilling. according to scotusblog.com, which live blogged the court's release of opinions and cases being accepted for hearing Monday.

As expected, the court decided Monday to agree to hear the FCC and justice Department's challenge  to the Second Circuit Court of Appeals decision in cases involving fleeting profanity on Fox awards shows and scripted nudity on former ABC drama NYPD Blue. The justices had conferenced June 23 on whether to grant cert on those and other appeals.

While broadcasters had asked the court to look at the FCC's authority to regulate broadcasting more generally if it decided to take the appeal, the court did not go that far. "The petition for a writ of certiorari is granted limited to the following question: 'Whether the Federal Communications Commission's current indecency-enforcement regime violates the First or Fifth Amendment [due process] to the United States Constitution,' the court wrote in accepting the cert petition.

Justice Sonia Sotomayor took no part in consideration of the decision. She is a former Judge on the Second Circuit Court of appeals, though she was not on the panels that decided either case.

"We believe that the Second Circuit's decision was correct. We believe that the Supreme Court should affirm that decision, and we will argue that before the Court," said ABC in a statement.

NBC and CBS both intervened in the case in support of Fox and ABC.

Look for the court to hear oral argument in the fall and make a decision sometime next spring. At stake is whether and how the government can regulate broadcast speech.

The Justice Department on April 21 asked the court to hear the appeal.

The Fox case is coming back to the High Court after it overturned the Second Circuit decision that the FCC's ruling was arbitrary and capricious on procedural grounds, with Supremes remanding the decision back to the Second Circuit, which proceeded to throw out the Fox indecency finding on the Constitutional question, saying it was vacating not only the specific order, but "the indecency policy underlying it." It is the court's first look at the bare behind of actress Charlotte Ross, scripted nudity of the NYPD Blue actress in a 2003 episode that drew an FCC fine for ABC stations.

The Fox case involved 2002 and 2003 Fox broadcasts of the Golden Globes involving swearing by Cher and Nicole Richie, respectively. 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 indecent material."

First Amendment attorneys have been looking for a chance to get the court to take a new look at the Pacifica decision,the 1978 so-called Seven Dirty words case involving a George Carlin monologue that aired on radio. That was the case thatbuttressed the FCC's content-regulation authority based on the finding that broadcasting was uniquely pervasive andaccessible to children.

The Second Circuit ruled that the FCC had abandoned a more restrictive reading of Pacifica--applying it to those seven words--and had adopted a context-based approach that lacked "discernable standards" and was thus vague and chilling.

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