Supreme Court Will Hear Case on Broadcast Indecency

Thirty years after it approved FCC rules banning the use of "indecent" language on broadcast television and radio, the Supreme Court on Monday agreed to look at the issue again - this time in the context of the fleeting use of expletives in live broadcasts.

At issue in the case of FCC v. Fox Television Stations is the seemingly spontaneous use of the "F-word" by Cher in 2002 and Nicole Richie in 2003 on Fox broadcasts of the Billboard Music Awards.

In accepting an award, Cher said critics had counted her out for decades, and she added, "So fuck 'em. I still have a job, and they don't."

Richie got an award for her role in a reality show that had her living a rural life. "Have you ever tried to get cow shit out of a Prada purse?" she asked on the air. "It's not so fucking simple."

After receiving complaints, the FCC ruled that these instances and others violated its 2001 policy that seemed to extend the ban on indecent language to "even relatively fleeting" instances. The commission also ruled against NBC when the singer Bono exclaimed during a Golden Globes award broadcast in 2003 that the award was "fucking brilliant." The commission did not levy fines, however, finding that networks did not have adequate notice of its policy.

Networks appealed and won a ruling from the 2nd U.S. Circuit Court of Appeals that the commission's new rules were "arbitrary and capricious" and "divorced from reality."

In his petition to the high court, Solicitor General Paul Clement said the 2nd Circuit ruling conflicted with the 1978 FCC v. Pacifica Foundation, a ruling which upheld enforcement of the FCC's rules against the broadcast of George Carlin's "Filthy Words" monologue on the radio. Clement said the ruling had sent the FCC on a virtually impossible "Sisyphean errand" of revising its regulations.

Networks, which face increased fines for violating the indecency rules, tried to persuade the Supreme Court to let the 2nd Circuit ruling stand. They hired Supreme Court veterans to plead their case. Sidley Austin's Carter Phillips is representing Fox, while Miguel Estrada of Gibson, Dunn & Crutcher filed a brief for NBC Universal.

Estrada wrote that the Pacifica ruling rests on a "moth-eaten foundation." With the wide availability of cable and satellite television and the Internet, which are not governed by the FCC indecency regulation, "there no longer exists any sound basis for according broadcast speech less protection than obtains in other channels of communication."

Robert O'Neil, director of the Thomas Jefferson Center for the Protection of Free Expression, said it was "not easy to predict" the outcome of the case, noting that both conservative and liberal justices have questioned the different standards that apply to broadcast and cable media. "I just hope they begin by rewriting the whole matrix and context" for broadcast speech regulation, he said.

(Published by Legal Times March 18, 2008)