WASHINGTON - The United States Supreme Court agreed today to hear argument in the Bush administration's appeal of the Second Circuit decision in Fox Broadcasting v. FCC – the "fleeting expletives" case, where a federal appeals court remanded the Federal Communications Commission's assessment of fines against Fox and CBS to the agency for justification of its change in indecency rules. (See previous coverage here.)
"We find that the FCC’s new policy regarding 'fleeting expletives' represents a significant departure from positions previously taken by the agency and relied on by the broadcast industry," wrote Circuit Judge Rosemary Pooler for the Second Circuit. "We further find that the FCC has failed to articulate a reasoned basis for this change in policy. Accordingly, we hold that the FCC’s new policy regarding 'fleeting expletives' is arbitrary and capricious under the Administrative Procedure Act. The petition for review is therefore granted, the order of the FCC is vacated, and the matter is remanded to the Commission for further proceedings consistent with this opinion."
The FCC, however, chose not to provide the requested justification for its targeting the unscripted use of words like "fuck" and "cowshit" by celebrities at award shows, instead appealing the Second Circuit ruling to the nation's highest court, where it doubtless expects to find a friendly reception from conservative Justices Samuel Alito, Antonin Scalia and Clarence Thomas, as well as Chief Justice John Roberts.
"We're always a little nervous when the Supreme Court takes any First Amendment case these days," opined First Amendment attorney Lawrence Walters, "because the potential exists to do damage to our freedoms, but sometimes the Court surprises, standing up for expressive freedom even when it's not politically correct to do so."
Walters cited the cases of Free Speech Coalition v. Ashcroft, which struck down parts of the Child Pornography Prevention Act, and ACLU v. Reno, which struck down the "indecency" provisions of the Communications Decency Act of 1996.
"We have two new members on the Court," Walters noted, "but those prior decisions were more than 5-4 – in fact, ACLU v. Reno was unanimous – so it's certainly possible that they could look at this and see the obvious First Amendment violation with such an undefined, arbitrary policy that the FCC has implemented over the years, but there's no telling what issue the court will choose to address."
Indeed; as First Amendment attorney John Crigler of the Seattle-based firm Garvey Schubert Barer commented to Broadcasting & Cable Online, the question of "whether it is just going to look at the administrative issue of whether the commission gave a rational explanation for its regulation or whether the court will go further and reach constitutional underpinning of indecency regulation itself" is still open, and at least one court watcher has predicted that the Roberts court may be remembered more for its decisions on procedural matters than on constitutional ones.
This is going to be a fascinating case to watch," Walters assessed. "It's going to give a lot of big media interests heartburn, but what I think they're looking for more than anything is clarity. Certainly, the adult industry is looking for a big First Amendment win, but I think the most important consideration from the big media perspective is getting some kind of clarity on what the rules are. It's almost as if they're saying, 'We're not so worried about the fact that there are rules or what they are; just tell us what they are so we can adjust our programming accordingly and continue to make money without threat of these fines'."
On the other hand, if the high court does decide to tackle the more substantive issues, it could easily split exactly as it did in Free Speech v. Ashcroft, with the four more liberal justices plus Justice Anthony Kennedy, the Court's most usual "swing" vote, recognizing the harmlessness of, for instance, the half-second exposure of Janet Jackson's nipple, or in the instant case, "Country Life" star Nicole Richie offhandedly referring to the difficulty of removing "cowshit" from her Prada purse.
"Society has progressed quite a bit on the issue of profanity and language over the last 30 years since [FCC v.] Pacifica [Foundation, the "seven dirty words" case] was decided," Walters stated, "to the point that I'm wondering, you know, if the Supreme Court is in touch at all with society, and that's an open question, could it really hold that there is still this legitimate governmental interest in prohibiting certain magic words and trying to justify that to 'protect children' who will inherit those same rights that we violate if we do this."
"It's no secret that the FCC's been overrun by zealots and so that's the reason for the policy change, although they'll never admit it, but that policy change has resulted in some substantial chilling effect," he continued. "You can see it in the networks being afraid to run Saving Private Ryan, and I think there was a case where a radio station decided not air a reading of the poem Howl by Allen Ginsburg on its 50th anniversary because they feared they'd be fined by the FCC for obscenity, so there's some tangible chilling effect going on out there as a result of this inconsistent and wildly variable policy that the FCC has adopted, and people are looking for clarity. We're looking for greater First Amendment rights. I don't know if either will come about. Maybe this will just be a procedural decision and maybe that's not such a bad thing."
The Supreme Court argument has been set for the Fall, giving the parties and their numerous amici plenty of time to marshal their arguments – and possibly making the case a campaign issue for conservatives, who will use the controversy as increased justification for electing a conservative president who will, they assure, likely get to replace at least two liberal justices with ones in the Scalia-Roberts-Alito-Thomas mold.