Supreme Court Takes Indecency Case
This entry was posted on 3/17/2008 2:04 PM and is filed under Indecency,Jeffrey Gee.
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Jeffrey Gee703-812-0400
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The Supreme Court has agreed to hear
the FCC's defense of its "Omnibus" Indecency order, which involved the FCC's
decision to punish "fleeting" expletives. The case, FCC v. Fox Television
Stations, marks the first real Supreme Court review of the FCC's indecency rules
since the famous FCC v. Pacifica case considered George Carlin's "seven
dirty words." The outcome of the case could entirely overturn the FCC's
authority to regulate indecency content or further entrench that
authority.
At issue in the case is the FCC's
decision in its Omnibus Indecency order to sanction Fox Television Stations for
"fleeting" or "isolated" uses of indecent words, reversing decades of prior
policy on "fleeting expletives". The Supreme Court's decision to hear the case
is somewhat surprising, given the fact that the Court of Appeals for the Second
Circuit (which issued the decision under appeal) specifically limited the basis
of its decision to a point of administrative procedure, rather than direct First
Amendment grounds. Moreover, the Court of Appeals for the Third Circuit is
still considering the appeal of the Super Bowl/Janet Jackson case.
Traditionally, the Supreme Court prefers cases that involve issues of
Constitutional significance that different appeals courts have decided in
different ways. In appealing the case to the Supreme Court, however, the FCC
argued, among other things, that the Second Circuit's decision was really an
attack on the entire basis of the FCC's indecency regulation and, by extension,
an attack on the Supreme Court's decision in FCC v. Pacifica. If the Supreme
Court follows that argument, we could see a reconsideration of FCC's authority
to regulate indecent broadcast content. On the other hand, the Court may simply
weigh in on the procedural point, setting up another round of reconsiderations
and appeals that could take years to resolve.
Legal pundits will spend the next
few months debating on the Supreme Court's motives for taking the case and
predicting the ultimate outcome. For now, we will limit ourselves to noting
that the FCC has a backlog of dozens, perhaps hundreds, of indecency cases that
have been held in limbo while the FCC has tried to get more guidance from the
courts and Congress. While today's announcement is a significant event, given
that the Supreme Court won't actually hear arguments until fall of this year,
those cases may expect to stay in limbo until at least 2009.
