Indecency And The Supreme Court

Last week we talked about what can we say on the air. You probably think the FCC has not been very helpful in guiding broadcasters. Well, that seems to be the view of the courts, too, as the cases establishing those standards will now get further review. Last Monday, the Supreme Court accepted the appeal of the famous " fleeting expletive and spontaneous utterances cases. The review will encompass the "Golden Globe Awards" case where singer Bono declared that his receipt award was "really, really fucking brilliant;" Cher's declaration at the "2002 Billboard Music Awards," "I've also had critics for the last 40 years saying that I was on my way out every year, Right. So fuck 'em;" and Nicole Richie's characterization, at the "2003 Billboard Music Awards," of her show "The Simple Life," as "Have you ever tried to get cow shit out of a Prada purse? It's not so fucking simple."

So, what's at stake here? Certainly the FCC test of indecency ... and possibly even the underlying regime supporting broadcasting regulation.

Ever since the Pacifica case, in which the Supreme Court upheld the FCC sanction for playing George Carlin's monologue "Filthy Words" in the midday as "indecent," it has been constitutional for the FCC to regulate indecent broadcasts. But, the Court specifically emphasized that Pacifica did not "speak to cases involving the isolated use of a potentially offensive word." For 30 years, the FCC adhered to that limitation.

Then came the "Golden Globes" cases. The networks and their station affiliates clearly had no warning that Bono, Ritchie or Cher would make such statements. They were spontaneous and fleeting utterances in a live broadcast. With a long-standing precedent that isolated and fleeting expletives were not actionably indecent, the FCC's Enforcement Bureau denied a complaint against the Golden Globes stations for Bono's "fleeting expletive." The staff was reversed by the full Commission.

To justify the new policy, the Commission came up with the "first blow" theory -- that even an isolated and fleeting expletive is an immediate "blow" to the broadcast audience that the FCC may prohibit.

The Second Circuit rejected this theory, holding that the Commission had provided "no reasonable explanation for why it had changed its perception that a fleeting expletive was not a harmful 'first blow' for the nearly 30 years between Pacifica and Golden Globes." To make matters more confusing, in the midst of all this, ABC aired the film "Saving Private Ryan," uncut and in prime time, when young children would be watching. The film contains repeated and deliberate use of numerous expletives, but the Commission concluded that this was not indecent or profane as the language was "integral" to the work.

Does that help? If Howard Stern reads a passage from his biography over the air, using the same expletives, would that be integral to the work? Would that meet the FCC test?

The 2nd Circuit overturned the Commission, saying that it had failed to articulate a reasoned basis for the change in policy. The government appealed to the Supreme Court. Note that the Court did not have to accept the appeal, and indeed, the networks argued that it should not.

Why did it? To settle the confusion and fear in the broadcasting world brought about by these cases. For example, many CBS affiliates refused to broadcast the Peabody Award-winning "9/11" documentary on the fifth anniversary of the September 11th attacks without editing potentially offensive words, and many stations have curtailed live news coverage for fear of someone jumping in front of the camera to shout a spontaneous utterance.

When are such expletives indecent and prohibited and when are they be acceptable?

Recognizing the confusion, the FCC issued an Omnibus Order in 2006 attempting to use past examples of prohibited word spontaneous utterances to set a guide. Fox and other broadcasters petitioned for review of the Omnibus Order, complaining that the Commission's decision lacked reasoned decision-making or an adequate explanation as to its legal theory. The 2nd Circuit Court agreed.

The Supreme Court has a variety of options. It can approve the FCC's rules, accept its theory for regulating fleeting expletives as indecent and provide more validation and definition to interpret and apply the standard. It could still be a confusing standard with a chilling effect, but in the words of Justice Jackson about the Court: "We are not final because we are infallible, but we are infallible only because we are final."

Or, the Court can provide finality to overruling the FCC and free broadcasters from placing their stations at risk, taking us back to the Pacifica standard of whether the material is "dwelt upon or repeated."

Also, lurking in the background is the networks argument in the lower court that the rationale for treating broadcast media "different[ly]" from other media has "eroded over time." Citing cable and satellite penetration, they claimed that the new "realities" of mass media have "eviscerated" the notion that broadcast content is, as termed in Pacifica, "uniquely pervasive" and "uniquely accessible to children." If the Supreme Court buys that argument, it must certainly apply to radio as well, with all of the audio alternatives making their way into the listening marketplace. Legal recognition of this reality would fundamentally affect the FCC's ability to regulate broadcasting, and place broadcasters much closer to newspapers.

So we now have a case before the Supreme Court that could consider the fundamental principle underlying FCC regulation of the broadcasting industry. At stake, if the Court goes there, is whether there is an adequate basis in law for the FCC to make rules to police the content of programming. Until now that super-cop function has rested on the theory of spectrum scarcity and the pervasive nature of broadcasting. Now with cable, satellite, iPods and the Internet, is broadcasting still "uniquely pervasive" and is scarce spectrum still so necessary? Can FCC regulation place unique First Amendment burdens on broadcasting with their resulting chilling effect? Perhaps the Court accepted the case to answer these questions.

But don't get your hopes up too much. A cherished judicial tradition is to rule as narrowly as possible to cover the issues clearly before the court. We'll see....

This column is provided for general information purposes only and should not be relied upon as legal advice pertaining to any specific factual situation. Legal decisions should be made only after proper consultation with a legal professional of your choosing.