On Tuesday April 28, in a 5-4 decision in the matter of FCC v. Fox Television Stations, the Supreme Court sided with the FCC, finding that the agency had not been arbitrary or capricious in its sanctioning of Fox  over two instances of live broadcasts where fuck and shit were uttered.  The FCC had determined that these instances of “fleeting expletives” were indecent — despite a long standing tradition of fleeting instances of “dirty” words uttered outside of a sexual context being immune from FCC sanctions.

Just a week later, the Supreme Court referred to this “fleeting expletives” case in its reversal of a Third Circuit Court of Appeals decision (FCC v. CBS).   This 2007 decision provided that the FCC could not fine CBS over the network’s live broadcast of the 2004 Superbowl half-time show, which featured Janet Jackson’s “wardrobe malfunction,” revealing her breast and nipple.  The case, involving “fleeting nudity,” also hinged on the claim that indecency standards were applied “capriciously and arbitrarily.” In other words, on whether the FCC provided a rational connection between the facts and the applicable laws.

Every cloud has its silver lining, however:  Justice Antonin Scalia, in writing for the majority in FCC v. Fox, declined to make a decision regarding the First Amendment implications of the FCC’s new policy regarding fleeting expletives, instead sending the case back to the lower court for further deliberation on this issue.

On remand, the Second Circuit Court of Appeals is likely to reaffirm its position that the FCC’s restriction on fleeting expletives will not pass First Amendment muster. This would be a win for free speech.  In its 2007 holding on this matter, the appellate court explained that all speech covered by the FCC’s indecency policy is fully protected by the First Amendment and that the FCC, in restricting such speech must both identify a compelling interest for regulating the speech, and choose the least restrictive means to further that interest.

The court also expressed concern that the test used by the FCC to determine which instances of indecent content to sanction (e.g. determining that fleeting expletives used “in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs” deserved sanction;) was unconstitutionally vague.

If broadcasters are unable to anticipate what indecent content will be sanctioned, then they will censor their broadcasts so that there is no doubt as to whether they will be fined over indecent content.   Any show, or live broadcast with the potential to contain even fleeting indecency will not be broadcast.   We may be looking at a world where awards shows cannot be viewed in real time, or colorful personalities, such as Bono and Cher, are never interviewed or allowed to make televised speeches.

NCAC Executive Director Joan Bertin, in reference to the CBS matter, explained that:

During all this time, broadcasters have been uncertain about what flies and what doesn’t, and have been making defensive decisions as a result. Whatever the merits or demerits of the Supreme Court decision, it has the decided disadvantage of allowing this state of affairs to continue for probably at least another 2 years – unless the political process makes the issue moot for the moment. Perhaps the hidden message is that this kind of issue should be resolved by the political process, not the constitution.

Slate’s Dana Stevens observed that:

To the extent that I ever had an opinion on this by now absurdly musty controversy, I would have been on CBS’s side. It’s the nature of live television coverage that things (Bono’s F-bombs, Janet’s nips) slip out, and the constant threat of fines could have a dampening effect on networks’ freedom to broadcast live, amounting to a kind of pre-emptive censorship … Here’s a litmus-test tip for President Obama as he begins his SCOTUS deliberations: Man or woman, “contructionist” [sic] or “activist,” just please, in the name of God, appoint a Supreme Court justice who does not give a prawn about Janet Jackson’s right nipple.

Bertin thinks this assessment is “fucking brilliant!”

Rethinking Scarcity and Pervasiveness

The 2007 Fox opinion, along with Justice Thomas’ concurrence from last week’s decision,  hints at a  radical departure from current broadcast indecency jurisprudence.

The Court’s current rationale for permitting the FCC to regulate constitutionally protected expression is that the airwaves are a scarce public resource, and the broadcast medium is uniquely pervasive.

Due to changes in technology— namely the availability of television shows and broadcasts via technologies outside of the broadcast spectrum (e.g. cable, satellite, Internet)– courts may determine that the old justifications for regulating indecent content are obsolete.

The Genachowski FCC: Friendlier to Free Speech Concerns

While acting FCC Chair (and Bush appointee) Michael Copps has endorsed the FCC’s current anti-indecency position; once Obama’s appointed chair Julius Genachowski is confirmed, the FCC may return to the pre-Bush administration view, and once again grant immunity from sanction to fleeting expletives.

Let’s hope that the crack-down on indecent content of the past several years  is a relic of the Bush administration.  The current and future administrations, along with the Supreme Court, Second  and Third Circuits, have the opportunity to return to a regime respectful of the First Amendment and free expression.  We hope that they take it.

For more information:

– Majorie Heins of the Free Expression Policy Project provides a wonderful analysis of what will likely happen when and if this matter comes before the Supreme Court again
– NCAC Blog’s prior coverage
– The Supreme Court’s Opinion
-The Supreme Court’s Order
– Oral Arguments – SCOTUS Wiki’s Coverage
The Second Circuit’s 2007 Opinion
– The Third Circuit’s 2007 Opinion
Tony Mauro’s Coverage in Legal Times
– Media Law Prof’s Blog