Analysis: What Are FCC's Chances To Have Fox Decision Overturned?

WASHINGTON, D.C. – After having been granted at least two filing deadline extensions, the U.S. Department of Justice (DOJ) finally petitioned the U.S. Supreme Court on Nov. 1 to overturn the 2nd Circuit U.S. Court of Appeals' decision in Fox Broadcasting v. FCC that so-called "fleeting expletives" spoken on-air in unscripted situations are not actionable by the agency.

Of course, considering the current makeup of the Supreme Court, it's dicey to predict whether a) the high court will grant the government's cert petition, and if so, b) whether it would support the 2nd Circuit's excellent analysis of why the FCC had overstepped its mandate in attempting to fine not only Fox but, in similar situations, NBC, CBS and ABC, all of whom were Plaintiff-Intervenors in the Fox lawsuit.

Recall that the Fox lawsuit turned around Cher's 2002 Billboard Music Awards acceptance speech wherein she stated, "People have been telling me I’m on the way out every year, right? So fuck 'em," as well as Nicole Richie's complaint voiced at the 2003 awards show, "Have you ever tried to get cow shit out of a Prada purse? It’s not so fucking simple."

Although "indecent speech" on the airwaves has been at issue since the Supreme Court's 1975 decision in FCC v. Pacifica Foundation, involving New York City radio station WBAI having broadcast George Carlin's "Seven Dirty Words" monologue, the 2nd Circuit in Fox focused on a 2001 settlement agreement in which the FCC agreed to clarify its indecency standards, later issuing a policy statement that was supposed to "provide guidance to the broadcast industry regarding our case law interpreting 18 U.S.C. §1464 [the section of the federal code that gives the FCC its power] and our enforcement policies with respect to broadcast indecency."

"The FCC first noted that 'indecent speech is protected by the First Amendment, and thus, the government must both identify a compelling interest for any regulation it may impose on indecent speech and choose the least restrictive means to further that interest'," the 2nd Circuit ruled.

"The FCC then explained that an indecency finding involves the following two determinations," the Second Circuit continued. "(1) whether the material falls within the 'subject matter scope of [the] indecency definition – that is, the material must describe or depict sexual or excretory organs or activities'; and (2) whether the broadcast is 'patently offensive as measured by contemporary community standards for the broadcast medium.' The FCC considers the following three factors in determining whether the material is patently offensive: '(1) the explicitness or graphic nature of the description or depiction of sexual or excretory organs or activities; (2) whether the materials dwells on or repeats at length descriptions of sexual or excretory organs or activities; (3) whether the material appears to pander or is used to titillate, or whether the material appears to have been presented for its shock value.'" [Emphasis in original]

Obviously, the Cher and Richie expletives did none of that – but between the FCC's 2001 "clarification" of its indecency policy and Nov. 6, 2006, when the FCC levied fines against Fox for allowing the Broadcast Music Awards expletives to air, the ultra-conservative Parents Television Council (PTC), headed by L. Brent Bozell, III, had become a major force in the pro-censorship movement, and its email blasts had generated a whopping 76,987 complaints to the FCC in December of '03, most of which had targeted Richie's comments.

Spurred in part by this "support" from PTC – it filed nearly one-and-a-half million indecency complaints in 2004 alone – the FCC declared that its 2001 indecency policy was "no longer good law." And although the agency had declined to fine NBC for a similar "fleeting expletive" uttered by U2's Bono during the Golden Globe Awards, since his "fucking brilliant" didn't describe sexual or excretory functions and was "fleeting and isolated," it began fining the networks in 2006 for similar single utterances in live broadcasts – and, of course, the split-second exposure of Janet Jackson's nipple during the 2004 Superbowl halftime show.

Although the broadcasters and their amici made, by the 2nd Circuit's count, seven distinct arguments as to why the FCC's fines should be overturned, the court based its ruling on just one of them: That the agency had been "arbitrary and capricious" in changing its "fleeting expletives" policy, and had failed to state an explanation for its decision that was based solidly on the evidence before it.

According to the Second Circuit opinion, "[T]he Commission attempts to justify its stance on fleeting expletives on the basis that 'granting an automatic exemption for "isolated or fleeting" expletives unfairly forces viewers (including children) to take 'the first blow'"; that is, to endure "indecent material on the airwaves [that] enters into the privacy of the home uninvited and without warning."

However, the FCC had made no studies and had received no scientific evidence on any deleterious effects on children of hearing the expletives. Moreover, the 2nd Circuit spent much of its opinion pointing out the hypocritical stances the FCC had taken on the expletives issue, including failing to fine various newscasts for having broadcast President Bush's use of the word "shit" and Vice-President Cheney's suggestion to Sen. Patrick Leahy to "fuck yourself."

However, the DOJ essentially ignored much of the 2nd Circuit's decision in claiming that the FCC had indeed explained its decision sufficiently, and that its decision was entirely justified by the Supreme Court's Pacifica ruling.

"The [FCC] provided a thorough, reasoned explanation for its change in policy," argued Solicitor General Paul D. Clement in his request to the Supreme Court. "Under the deferential standard of review required by the Administrative Procedure Act, the commission's judgment as to how best to enforce the federal prohibition on the broadcast of indecent material should have been upheld, and the court's contrary conclusion was erroneous."

"The reasoning of the Court of Appeals conflicts directly with the context- driven approach governing broadcast indecency that this Court upheld in Pacifica," Clement's filing continued, adding that the 2nd Circuit opinion was "at bottom, an attack on this Court's decision on Pacifica."

Of course, what the 2nd Circuit had actually done was to remand the FCC's levy of fines against Fox back to the agency, ordering it to provide a better justification for its change in policy over "fleeting expletives," but the DOJ's initial filing with the Supreme Court apparently sidesteps that attempt at agency accountability.

Seizing on the high court's notation in Pacifica that the FCC's fine over the Carlin monologue was "issued in a specific factual context," and Justice John Paul Stevens' opinion that "indecency is largely a function of context - it cannot be adequately judged in the abstract," Clement argued that, "By faulting the commission for exercising the contextual judgment that Pacifica mandated, the court of appeals appears to have put the FCC to a choice between allowing one free use of any expletive, no matter how graphic or gratuitous, or else adopting a (likely unconstitutional) across-the-board prohibition against expletives."

Clement called the task of explicating the FCC's fleeting-expletive policy a "Sisyphean errand," referring to the Greek legend of Sisyphus, who was cursed by the gods to roll a massive rock up a hill but never allowing it to reach the top before the rock rolled back down to the bottom. However, since the American judicial system is based on a system of "laws, not of men," surely broadcasters have a right to know just what the FCC's rules regarding expletives are so they can tell whether they are violating such rules. The Solicitor General appears to argue that such specificity is somehow unreasonable.

It seems likely that Justice Anthony Kennedy, as has been the case with most of the high court's free speech cases of the past few years, will once again be the "swing vote" if the Supremes accept the Fox case – and if Kennedy holds true to some of his more stirring defenses of speech in such cases as Ashcroft v. Free Speech Coalition and City of Los Angeles v. Alameda Books, it's likely that the 2nd Circuit ruling will be upheld – at least to the extent that the high court may require the FCC to enunciate an actual policy on fleeting expletives, rather than allowing it to sway with the whims of the number of PTC-sponsored complaints.