The Justice Department asked the Supreme Court last week to review a lower court's decision that the FCC failed to justify its crackdown on fleeting expletives in Fox's Billboard Awards show.
The department said that, as it stands now, broadcasters have a pass to swear at will, and the FCC's ability to regulate indecency at all is at stake, an issue it says the High Court needs to resolve.
The FCC sufficiently explained its policy change, the department said, and the lower-court ruling was in conflict with the Supreme Court's Pacifica decision, which upheld the commission's power to regulate indecency.
How the FCC is able to exercise that power, if at all, could be at issue if the High Court takes the case.
If the court doesn't take the case, the FCC will either have to justify or modify its profanity enforcement policy. But if it does the latter, it could be even stricter. The FCC had defended its crackdown on “fleeting profanities,” saying that it was defending kids against the “first blow” from those words. The Second Circuit pointed out that the commission did not find the words indecent in Saving Private Ryan, for example, and that it did not see why that was any less of a “first blow.”