Supreme Court to Hear Arguments in Indecency Case
Special Report - November 3, 2008
On November 4, the U.S. Supreme Court is scheduled to begin hearing arguments in FCC v. Fox Television Stationsthe first major broadcast indecency case the high court has considered since 1978. The Federal Communications Commission (FCC) is appealing a June 2007 ruling by a federal appeals court that struck down its policy that allows fines to be levied against broadcasters that air even a single use of the f-word or similar profane terms.
The case began with a lawsuit filed by Fox Television stations (as well as separate filings by NBC, ABC and CBS), challenging the constitutionality of a FCC rule that says that “isolated or fleeting” instances of the f-word can be considered indecent and profane. The FCC issued the rule in response to the use of the f-word by performers Bono, Cher and Nicole Ritchie during broadcasts of the 2003 Golden Globe Awards on NBC and the 2002 and 2003 Billboard Music Awards on Fox (as well as expletives used on a CBS’s “The Early Show” and ABC’s “NYPD Blue”). The FCC’s Bureau Enforcement Division had previously ruled in the Golden Globe case that the broadcast was not indecent because the use of the f-word was “fleeing and isolated.” The full commission later revisited the issue and reversed the Bureau’s earlier decision, concluding, “While prior Commission and staff action have indicated that isolated or fleeting broadcasts of the ‘F-Word’ such as that here are not indecent or would not be acted upon, consistent with our decision today we conclude that any such interpretation is no longer good law.” Despite the new policy, the FCC did not issue fines against the broadcasters for the violations.
In its 2007 decision in the case, the 2nd U.S. Circuit Court of Appeals ruled against the FCC policy, stating: “We find that the FCC’s new policy regarding ‘fleeting expletives’ represents a significant departure from positions previously taken by the agency and relied on by the broadcast industry. We further find that the FCC has failed to articulate a reasoned basis for this change in policy.” The lower court voided the FCC policy, and the FCC appealed the case to the U.S. Supreme Court, and is asking the high court to reverse the decision.
“The simple solution here is that broadcasters could and should adopt a zero-tolerance policy towards indecency, just as they promised they would during a Congressional tribunal after the Janet Jackson incident,” said Tim Winter, president of the Parent’s Television Council, a television watch-dog group that filed an Amicus brief in the case. “We urge the Supreme Court to reverse the lower court’s decision which clearly defies the public interest, congressional intent, long-established law and common sense.”
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