Cert. Grant in Fleeting Expletive Case Stirs Media Anxiety

Today's New York Times includes an editorial expressing concern over the Supreme Court's decision last week to grant the FCC's petition for certiorari in the agency's appeal of its loss before the Second Circuit Court of Appeals in a challenge of the imposition of fines for brief outbursts of unscripted profanity during broadcasts on Fox. (See prior post re: grant.)  The editorial notes that the agency's policy change with regard to the punishment of broadcast indecency has had a significant chilling effect, leading broadcasters, especially public television stations without substantial financial resources to alter or cancel programming due to uncertainty over the application of the FCC's newly stringent policy.  The Second Circuit's decision invalidated the policy on administrative law grounds but indicated that the agency would find it hard to craft a policy that did not infringe on the First Amendment's protection of broadcasters. Noting that a denial of cert would have left the Second Circuit ruling in place, the Times editorial expresses anxiety about whether the Supreme Court intends to reverse the widely applauded appellate ruling.

JFB