Cert Granted: FCC v. Fox

The Supreme Court agreed yesterday to take up a challenge to an FCC policy that bans the use of "fleeting expletives" on radio and television broadcasts.  Last year the Second Circuit Court of Appeals ruled against the FCC, holding that its broadcast decency policy violated the Administrative Procedures Act and likely would be found unconstitutional in a First Amendment challenge. 

Judge Rosemary Pooler observed that the FCC had consistently taken the view that broadcast decency standards applied to verbal assaults and the repetitive use of profanity, but did not extend to isolated, fleeting expletives.  The FCC was free to change that policy, she stated, but only after providing an explanation for the policy change as required by the Act.  She nonetheless expressed doubt that, however adequately explained, the ban could survive a First Amendment challenge given its indeterminate and flexible application.  Regulations take into account the "context" of each broadcast to determine whether decency standards are violated, leaving broadcasters to guess as to whether any particular broadcast crosses the line.

The US Supreme Court upheld broadcast indecency regulations in 1978, after the Pacifica Foundation aired comedian George Carlin's "filthy words" monologue.  Since then, the FCC had taken a hands off approach to random, unanticipated profanity until 2003, when pop mega-star Bono said "fucking brilliant" during a 2003 Golden Globe awards.  The FCC also took notice when Cher and Nicole Richie used profanity during broadcasts of the Billboard Music Awards.  None of the three episodes resulted in a fine, but the FCC did issue notices of apparent liability to Fox. 

-Kathleen A. Bergin