The justices of the U.S. Supreme Court have agreed to hear the FCC’s indecency policy — the first time it has considered the issue since George Carlin’s “Seven Dirty Words” case three decades ago.
The FCC gets a chance to defend its decision to punish broadcasters for the isolated and fleeting on-air use of expletives, an abrupt change in the commission policy that a federal appeals court last year found procedurally improper.
The court’s acceptance of the case came as a surprise on both sides. Its range of actions could be to accept the FCC’s policies or throw them out completely.
“This does come as a surprise,” said Andrew Jay Schwartzman, head of the Media Access Project. “We were not alone in expecting that the court would reject the government’s request to hear the fleeting expletive challenge.”
It has been almost exactly 30 years since the Supreme Court ruled in the “Seven Dirty Words” case that the First Amendment did not bar the government from regulating the broadcasting of speech that, while “indecent,” was not actually obscene. For years after that ruling, the FCC exercised its power with a light hand.
The approach changed in 2003, when the NBC broadcast of the Golden Globe Awards drew complaints for the expletive that the singer Bono used as an adjective to express his delight at receiving an award for best original song. The commission overruled its own Enforcement Bureau, which had denied the complaints on the basis of the existing policy, and found that the fleeting expletive fell within the definition of indecency, because it “invariably invokes a coarse sexual image” that made its broadcast “shocking and gratuitous.”
Complaints about two other broadcasts, both of which occurred during the Billboard Music Awards on the FOX network, eventually led to the case the justices accepted last week. The entertainers Cher, in receiving an award, and Nicole Richie, in presenting one, both used common expletives that generated complaints. The commission did not impose a sanction, but made the new policy official and put broadcasters on notice there would be future penalties.
A coalition of broadcasters challenged the new policy in the United States Court of Appeals for the Second Circuit, in New York, raising constitutional and statutory objections. In a 2-to-1 ruling last June, the appeals court did not address the First Amendment challenge directly. Rather, it held that the commission had violated ordinary principles of administrative law by making “a dramatic change in agency policy without adequate explanation.”
The appeals court vacated the commission’s order, instructing the FCC to “articulate a reasoned basis for this change in policy.” At the same time, the appeals court majority made it clear that any explanation would face a high hurdle. “We are skeptical” that any explanation “would pass constitutional muster,” the court said in an opinion by Judge Rosemary Pooler.
In its Supreme Court appeal, Federal Communications Commission vs. Fox Television Stations, No. 07-582, the commission said the ruling placed it in an “untenable position” by leaving the commission “accountable for the coarsening of the airwaves while simultaneously denying it effective tools to address the problem.” The case is slated for the court’s next term.