Reactions varied to the oral argument Wednesday in the broadcaster--primarily Fox--challenge to FCC profanity decisions.
One veteran First Amendment attorney, John Crigler of Garvey Schubert Barer, who has defended broadcast speech, identified several key points in the arguments before the U.S. Court of Appeals for the Second Circuit in New York:
1) "No one talked about profanity. Arguments were couched entirely in terms of indecency policy,"
2) "The FCC conceded that it's Golden Globe policy was before the court even though the Golden Globe decision is still pending at the FCC.
3) "The court wonders whether the news exception for indecency/profanity can be reconciled with the theory that broadcasting must be regulated because regulation is the only way of preventing the "first blow" to a child."
4). "The court is suspicious of the argument that the rating system and v-chip aren't less restrictive alternatives to regulation when the FCC hasn't criticized or sought to improve those systems."
The caveat is always that judge's rulings do not always follow their line of questioning. A a tough line of questioning, as the judges often seemed to take with the FCC's Eric Miller, could simply be testing the strength of the argument.
Tim Winter, executive director of the Parents Television Council, whose complaints helped prompt the FCC's profanity rulings, said there were no real surprises. "The tenor of the court reflected Fox’s clear intent to forum-shop in the 2nd Circuit," he said.
"You didn’t see Fox looking to make their argument in the 4th, 5th, 6th, 7th 8th, 10th or 11th Circuits for good reason. It was interesting to see how uneasy the judges were with the open use of the profane words at issue (one judge said she would not repeat the language and a second also seemed hesitant]; and that was in a NYC courtroom, not prime time television."
The 2nd, 3rd and 9th circuits are generally thought to be the most liberal. The Janet Jackson fine challenge is being heard in the 3rd circuit.
the judges may have been reluctant to swear in court, but Fox attorney Carter Phillips said "fuck" and "fucking" and "shit" almost immediately in outlining the case, as if to get the words out, on the table and unabashedly part of the conversation.
Winter said he was "pleased to see the court expose the inability of the v-chip to protect children, as we have been saying for years."
But he said the FCC had not done a sufficiently good job of "accurately representing the sense of the nation on this issue."
"Bottom line," said Winter, "we expected a hearing much like what we saw/heard this morning, and regardless of the outcome of today’s hearing, we doubt the 2nd Circuit will be the final word."