Supreme Court Hears FCC vs. Fox Broadcasting

WASHINGTON, D.C. - For the first time in 30 years, the U.S. Supreme Court is taking a look at so-called "indecent" speech on broadcast TV and radio ... but it may not look very deeply.

The high court last examined the issue in FCC vs. Pacifica Foundation, the famous George Carlin "seven dirty words" case which upheld the government's right to regulate profanity on the air. Now, in the case of FCC vs. Fox Broadcasting, the high court may opt only to decide the narrow question of whether the FCC violated the Administrative Procedures Act (APA) in attempting to fine Fox for airing so-called "fleeting expletives" - that is, single unexpected utterances of words like "fuck" and "shit."

But "fuck" and "shit" weren't in evidence when the Supreme Court heard argument in the petition of FCC vs. Fox Broadcasting on Tuesday morning. Rather, everyone referred to them as "the F-word" and "the S-word" - leading to the interesting conundrum that the high court would be deciding the broadcast fate of words that it would apparently hurt their ears (or minds) to hear spoken in a courtroom.

The present case arises from the FCC's decision to begin levying fines on broadcasters who allowed even single instances of "fuck," "shit" and its variations to go out over the airwaves, even though, historically, it had overlooked such slips.

FCC vs. Fox Broadcasting targets two instances of "indecent speech" at the 2002 and 2003 Billboard Music Awards shows: One in which award-winning singer/actress Cher responded to critics with a curt, "Fuck 'em," and another where Nicole Richie, describing her role in the sitcom "The Simple Life," complained, "Does anybody know how fucking hard it is to get cowshit out of a Prada purse?"

The FCC announced in 2004 that it was "changing course" and now fining stations which aired the "fleeting expletives" - which led to the Fox lawsuit. The commission's change in policy followed in the wake of singer Bono's exclamation "fucking brilliant!" during NBC's broadcast of the 2003 Golden Globe awards.

The case is all the more significant because Congress, in 2005, authorized a 10-fold increase in the maximum fine for such acts from $32,500 per incident to $325,000 - hardly small change, even for a national media conglomerate.

However, when the case was decided by the Second Circuit Court of Appeals, there were essentially two questions before the court: Whether the FCC had complied with the APA regarding a 2001 settlement agreement in which the agency had 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 Federal Communications Code] and our enforcement policies with respect to broadcast indecency," and whether the FCC in fact had the power to fine stations for the fleeting expletives, considering that even as it fined Fox and CBS, it had exempted broadcasts of Saving Private Ryan, the Tom Hanks movie about WWII containing multiple "indecencies," and an Early Show broadcast where a survivor of the reality show "Survivor" had used one of the "indecent" words in describing his survival ordeal.

During argument, U.S. Solicitor General Gregory G. Garre, representing the FCC, urged the high court to decide only the APA question, arguing that the FCC had indeed complied an explanation for its "change of course" on fleeting expletives, even though during the argument before the Second Circuit, Garre's associate had claimed that the FCC had always prohibited the broadcast of fleeting expletives, even though it had never previously levied a fine for doing same.

Justice Ruth Bader Ginsburg seemed to indicate that she thought the basic question of indecency should be the issue before the high court, but Garre disagreed.

"[T]he Second Circuit at three different places in its decision ... made clear that it was not deciding the constitutional issues," Garre said. "Judge Laval who dissented didn't say anything about the constitutional issues. So we certainly want another crack at those issues before the Second Circuit, and Respondents after all are not simply asking this Court to hold the regulation of isolated expletives is unconstitutional, but that any broadcast indecency regulation is unconstitutional; and at a minimum before this Court entertains that kind of radical constitutional shift, it ought to have the benefit of a court of appeals decision which actually decides those issues."

However, Garre wasn't averse to arguing the indecency question. When Justice John Paul Stevens asked whether, in deciding to levy a fine, the FCC took into account whether the utterance was "really hilarious; very, very funny," Garre replied, "Well, my point is that we will take it into account, but I think you can recognize the potentially greater harmful impact on children where you have celebrities using particularly graphic, vulgar, explicit, indecent language as part of the comedic routine during a show that children are comprising a substantial part of the viewing audience. And that is one of the factors that is appropriate under this Court's decision in Pacifica and the Commission's policy to take into account the time of day and the viewing audience."

Fox attorney Carter Phillips, on the other hand, clearly wanted the high court to reform the FCC's powers to target indecency - and it was during his presentation that the biases of Chief Justice John Roberts and Justice Antonin Scalia were most evident.

"[T]he reality is that from 1978 until 2004 this kind of language was used routinely, without the Commission remotely suggesting that every time it was used, it necessarily had a particular meaning," Carter said at one point, referring to whether the FCC based its fines on whether a word was used in its sexual or excretory connotation, or had some other meaning. "And then suddenly in 2004, this language has changed its tone completely, and there is no explanation for what is different or what is the reason for adopting that particular view."

"They said that," Scalia replied. "They gave the reason for their current belief. They said even when it is used just as a swear word or as an expletive, the reason it has its impact is precisely because it refers to these excretory or sexual activities; that's what gives it its zing."

"This Court expressly said in Cohen v California, in talking about exactly the same word, that it cannot plausibly be maintained that this vulgar allusion would conjure up such psychic stimulation," Phillips argued. "And if the Court would say that in 1970, it applies with even more force in 2008."

The Cohen case involved 19-year-old Paul Robert Cohen, who was arrested on charges of "disturbing the peace" outside the Los Angeles County Courthouse for wearing a jacket that bore the legend, "Fuck the Draft." Justice John Marshall Harlan II, writing for the 5-4 majority of the Supreme Court, ruled that, "[A]bsent a more particularized and compelling reason for its actions, the State may not, consistently with the First and Fourteenth Amendments, make the simple public display of this single four-letter expletive a criminal offense," adding later that, "one man's vulgarity is another's lyric."

"The Commission's position here is not, when these words were used, people necessarily thought of a literal meaning," Roberts disagreed. "Instead, its position is that the reason these words shocked is because of its [sic] association with the literal meaning. That's a different question than what was being addressed in Cohen."

There followed a discussion of whether any use of the word "fuck" necessarily has or invokes a sexual meaning - hard as that would be hard to justify in Bono's exclamation of "fucking brilliant!" - with Roberts concluding that, "Because it is associated with sexual or excretory activity, [t]hat's what gives it its force."

"I suppose you can say it, but I don't understand on what basis," Phillips retorted. "There is no empirical support for that. There's no - anything in the record that remotely suggests that," with Scalia interrupting him in the middle to proclaim, "Of course there is."

"People use all kinds of euphemisms for it, and nobody blinks about it," Phillips disagreed. "The point is that for 20-some years the Commission didn't draw that inference, didn't reach that conclusion and nothing has changed over those 20-some years."

Justice David Souter wasn't so sure that nothing had changed, noting that, "we have assumed over the years that people really didn't get too exercised by the usage we have permitted. But we are now getting all this mail from people who are very angry about it, and they find it extremely offensive. And therefore, I guess our prior community broadcast standards were wrong. We weren't taking into consideration the way people actually felt. Now we know how they felt, because of the mail we are getting and we are changing our policy for that reason," finally asking Phillips, aside from the constitutional question of "indecent" speech, would that raft of complaints offset the question of whether the FCC's sudden rule change was arbitrary and capricious?

"I think it probably would," Phillips replied, "if all you are doing is looking at just the sort of raw Administrative Procedure Act standard, as it would normally apply to non-content," adding however, "I don't think that's a fair way to look at this case. ... [I]t seems to me a completely artificial inquiry to look at this as [if] you're regulating the price of oil going through a pipeline. At the end of the day you are regulating the content of speech, and therefore the First Amendment ought to inform everybody's assessment of what can the Commission do as it moves in a more content-restrictive way."

This brought up a discussion of whether the Supreme Court would be overreaching if it decided this case on its First Amendment issues rather than the procedural question, since the high court is tasked with avoiding deciding constitutional issues if a less far-reaching solution is possible. But according to Scalia, under some of its previous decisions, the Supremes couldn't even expand the Administrative Procedures Act - which would leave the Respondents with no relief whatsoever.

"Yes, I am asking for a higher standard under the APA because we are talking about content-based restrictions on free speech," Phillips retorted. "All I'm saying is that it seems to me a remarkably artificial inquiry, to look at this as if you are regulating the price of oil going through a pipeline as opposed to what you are talking about -"

"You should have complained to the lower court about that," Scalia scolded. "You should have said, please don't decide this on the APA issue. This is a First Amendment case. You should reach the constitutional issue. But you went on the APA issue, and then you come up here and say: I don't want to discuss the APA; I want to discuss, you know, the First Amendment."

But Phillips brought up the fact that a violation of the FCC's decency code is a criminal act, with the fines as punishment, and argued that, "the Commission doesn't have broad-based discretion to define for itself these terms. The Commission has to decide what is indecent within the meaning of a Federal criminal statute, which means we are entitled to the rule of lenity, which means we are entitled to an interpretation of that first prong which, in dealing with indecency, says that it has to describe or depict sexual activity."

That led to one of the more interesting dialogs in the FCC v. Fox argument, which began with Roberts attempting to make a context-based distinction between Cher saying "fuck" on TV and a high school football player using the same word during a televised high school football game.

"And this is where the context comes in," Roberts responded. "At least with impressionable children, that's dramatically different from saying here is an awards show, here is a celebrity, I want to listen to what they are going to say because I listen to their music, and he comes out with that, as opposed to a football. They know that, you know, somebody says a bad word in the middle of the interview. The context makes all the difference in the world."

"I don't remember the FCC being in a position to describe how children are able to perceive one set of uses of the word as opposed to another set of uses of the word," Phillips observed.

"They perceive that," Roberts assured him. "They know. I mean, it's one thing to use the word in, say, Saving Private Ryan, when your arm gets blown off. It's another thing to do it when you are standing up at an awards ceremony."

"You can't seriously believe that the average nine-year-old, first of all, who is probably more horrified by the arm being blown off to begin with, but putting that aside, you - it cannot possibly be that the child has more of a reaction to that word in that context than if a young high school football player is running down the field screaming a particular expletive," Phillips answered. "[T]he problem is, Mr. Chief Justice, once you open the door, then you end up with all of the vagueness and overbreadth problems that are inherent in this regime."

However, after Phillips argued that the reason Fox doesn't use the expletives even during the "safe harbor" period of 10 p.m. to 6 a.m. is because some portion of Fox's audience wouldn't like to hear them, Roberts, betraying a skewed understanding of government power, retorted, "If you can take that into consideration, why can't the FCC make the same determination, that there may be some people offended by this, and if there are some people, as part of our statutory responsibility, we are going to look at it? Not that they automatically impose a sanction, but that they're going to look at it?"

"Well, first of all, that's a heckler's veto," Phillips responded, "and there have been long holdings in this Court that suggest simply pandering to one small segment of the population is no way to enforce First Amendment rights. So that's - I mean, that's my primary answer to that."

"There goes Pacifica," sighed Scalia, the author of the dissent in Lawrence v. Texas, wherein he implied that that decision would invalidate all laws affecting sexual morality.

"What if people like, you know, going on and on with expletives and offensive words?" he continued. "Are those of us who are offended by that hecklers and you can't take our positions into account because you're giving effect to a heckler? I mean, I don't think so."

Justice Anthony Kennedy then asked, "Do you think today the community generally is more offended by these words or more tolerant of these words as compared to what Pacifica was concerned with?"

"I believe that society is significantly more tolerant of these words today than it was 30 years ago," Phillips answered.

"Do you think your clients have had anything to do with that?" Scalia asked, provoking laughter in the courtroom.

"In the scheme of things, probably very, very little to do with that compared to the way the language is used," Phillips responded. "Go to a baseball game, Justice Scalia. You hear these words every time you go to a ballgame."

"You do, indeed," Scalia retorted, "but you don't have them presented as something that is normal in polite company, which is what happens when it comes out in television shows. This is a coarsening of matters that is produced by the shows. So I am -- you know, I am not persuaded by the argument that people are more accustomed to hearing these words than they were in the past."

Spoken like a true conservative!

But Phillips brought up his concerns that if the FCC holds to its new fleeting expletives rule, and the Supreme Court allows it to do so, many broadcasts and potential broadcasts would be affected.

"To me the best illustration of it," Phillips said, "and the one that the public interest, I would hope, would command or demand the Court take account of, is the Vermont public station that refused to broadcast a debate or - or allow a number of Senatorial candidates to participate in a debate because that candidate had used expletives in a previous public forum, and, therefore, didn't think it could allow that broadcast and take that risk because it can't afford to have the tape-delayed technology that you are talking about. And that to me is the quintessential example. But there are loads of them, and it's just going to get worse once you decide to get past the notion that a fleeting expletive, no matter how it arises, requires to you justify it. Because we went from a system that said: We will, in general, never condemn fleeting expletives, to the system that exists now, which is we routinely condemn them unless we think its okay. And that's a system, it seems to me, this Court ought not to countenance. It is embedded in the Second Circuit's decision. The Court should affirm that decision and ... remand back to the Commission so it can do the best it can to try to come up with a justification that satisfies both the APA and the First Amendment that it has not done so far."

The argument continued a bit longer, with Justice David Souter attempting to define what the FCC means by "indecent". But in the end, it appeared clear that Roberts and Scalia were likely to affirm the FCC's position, while Ginsburg, Kennedy, Souter and Stevens would vacate, or at least remand the case to the FCC for a fuller explanation of its new doctrine. Breyer, from his brief comments, seemed noncommittal. Neither Alito nor Thomas spoke, though there can be little doubt where their sympathies lie.

It will likely be several months before the high court's decision in FCC vs. Fox is published. Broadcasters will probably spend that time policing their guests' language very carefully, as millions of dollars in fines hang in the balance.