- The Washington Times - Monday, November 3, 2008

Attorneys for the government and the four big TV networks face off before the Supreme Court on Tuesday over regulation of profanity on the public airwaves, marking the first time in 30 years that the nation’s high court has considered broadcast indecency rules.

At issue is whether the isolated broadcast of a curse word can be considered indecent and punishable by hefty fines. A lower court rejected the policy last summer as an “arbitrary and capricious” departure from long-standing Federal Communications Commission (FCC) precedent.

The stakes in the debate over “fleeting expletives” are high, both sides say. Networks warn that the regulations produce a chilling effect that risks the very existence of live broadcast television. The FCC, meanwhile, said its policy prevents broadcasters from having free rein to air curse words at any time of day.

The last time the Supreme Court considered broadcast indecency was in 1978’s FCC v. Pacifica Foundation, a case that stemmed from a New York radio station’s afternoon broadcast of comedian George Carlin’s “Filthy Words” monologue.

In a 5-4 decision, the court justified government censorship at hours when children are likely to be watching, based partially on the “first blow” theory that indecent material on the airwaves enters a person’s home uninvited and without warning.

Specifically, the Supreme Court said indecency is “intimately connected with the exposure of children to language that describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities and organs, at times of day when there is a reasonable risk that children may be in the audience.”

In the wake of Pacifica, the FCC limited its enforcement to material that mirrored Mr. Carlin’s monologue, involving the repeated use of swear words “for shock value.” In 1987, the agency noted that material could be indecent even if it did not contain profanity so long as it was functionally equivalent to verbal “shock treatment.”

A 2001 policy statement articulated a two-pronged indecency test taken largely from Pacifica: 1) The material must fall within the subject matter scope, describing or depicting sexual or excretory organs or activities; and 2) It must be patently offensive as measured by contemporary community standards for the broadcast medium.

Three decades after Pacifica, FCC v. Fox Television Stations Inc. involves several instances in which the FCC concluded that “fleeting” uses of curse words were indecent. The most notable example involved the January 2003 broadcast of the Golden Globe Awards on NBC. Accepting the award for best original song, singer Bono said, “This is really, really [expletive] brilliant.”

In response, the FCC concluded that the particular expletive, though it was not being used to describe or depict sexual or excretory organs or activities, is indecent because it “inherently has a sexual connotation.” Noting that this represented a change in policy, the commission didn’t issue a fine.

The agency used the same reasoning in 2006 when it issued a sweeping order that included numerous findings of indecency, including two separate Fox broadcasts of the Billboard Music Awards to be indecent. In 2002, Cher, speaking about her critics, said, “[expletive] ‘em.” The following year, Nicole Richie asked: “Have you ever tried to get cow [expletive] out of a Prada purse? It’s not so [expletive] simple.” Again, the commission didn’t levy fines.

The2nd U.S. Circuit Court of Appeals’ ruling against the FCC last summer hinged on its finding that the agency violated the Administrative Procedure Act (APA) because it did not give a reasonable explanation for its change in policy. Although the court did not base its decision on First Amendment grounds, it did question whether the policy could withstand constitutional scrutiny.

The government is urging the court to limit its review to the APA. U.S. Solicitor General Gregory Garre, who is arguing in favor of the FCC’s position, declined to comment on the case, citing Justice Department policy not to discuss pending litigation. But the government’s brief refers to the 2nd Circuit’s decision as an “inappropriate second guessing of policy judgments committed to the agency by Congress.”

As for criticisms of the FCC’s finding the same expletive indecent in one case, such as the Golden Globes broadcast, but not indecent in others, such as a broadcast of the movie “Saving Private Ryan,” the government defends the agency’s weighing of “contextual factors.”

Family groups that have filed amicus briefs in the case supporting the FCC’s policy on fleeting expletives stressed the importance of protecting children from curse words. The Parents Television Council, an advocacy group that encourages its members to file complaints with the agency over perceived indecency violations, said broadcast television is still “uniquely pervasive in America and accessible to children.”

Broadcasters contend that the FCC did not follow its own contextual analysis in finding the expletive used by Bono indecent.

“In lieu of analyzing whether Bono’s words actually depicted or described sexual or excretory activity - as required by the first step of the commission’s test - the commission held that ‘any use of [expletive] or a variation, in any context, inherently has a sexual connotation,’ ” according to the joint brief for NBC Universal Inc., CBS Broadcasting Inc. and ABC Inc.

In addition to supporting the 2nd Circuit’s finding that the FCC violated the APA, the networks are calling for the court to rule on the First Amendment implications of the case.

In an interview, Carter Phillips, a lawyer at Sidley Austin LLP, which is representing Fox, said it would be “totally artificial” for the court to divorce the APA from the First Amendment.

“At some point, the commission has to explain why it is prohibiting more content and whether that explanation is adequate without the First Amendment concerns seems to be a completely academic issue that the court ordinarily would not decide,” Mr. Phillips said. “I think there is a strong likelihood that the court will address the First Amendment issue at least to the extent that it imposes a burden on the FCC to do more than simply announce that it has changed its policy.”

The Fox brief makes the case that the FCC’s policy has chilled speech. Mr. Phillips said small stations that cannot afford time-delay equipment will be disproportionately affected.

Broadcasters and their supporters further argue that things have changed since Pacifica. They say advances in technology mean that over-the-air television is no longer a “uniquely pervasive” medium given the rise of the Internet, and they cite parental controls and devices like the V-chip that they say can protect children.

Legal analysts are divided when it comes to the chances that the Supreme Court will limit the scope of its decision to the APA or wade into constitutional issues.

“I think that revisiting the 1978 Pacifica decision, which is essentially what would happen if the court opens up the First Amendment questions, is incredibly complicated and challenging,” said Stephen Wermiel, an adjunct professor at the American University Washington College of Law.

Mr. Wermiel said his “hunch” is that the court will rule in favor of the FCC’s authority.

On the other hand, Jerome Barron, a professor at the George Washington University School of Law, said the fact that the court agreed to hear the case indicates at least four justices probably see the case as a First Amendment issue.

He noted, however, that even if four justices were interested in revisiting the constitutionality of the FCC’s indecency policy, it doesn’t necessarily mean a majority would support doing so.

“If the broadcasters can convince five of them to see it as a First Amendment issue, I think they’re likely to decide against the FCC,” he said. “I think the FCC is out on a limb here, and I think that the court might take its First Amendment sword and cut them down.”

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