Friday, November 7, 2008
Here's a link to the transcript of oral argument in FCC v. Fox, on appeal from the 2nd Circuit, argued Tuesday. Among the interesting questions posed from the bench:
From Justice Ginsburg,
One of the problems is that, seeing it in operation, there seems to be no rhyme or reason for some of the decisions that the Commission has made. I mean, the "Saving Private Ryan" case was filled with expletives, and yet the film about jazz history, the words were considered a violation of the Commission's policies. So that there seems to be very little rhyme or reason to when the Commission says that one of these words is okay and when it says it isn't.
GENERAL GARRE: Well, we do think, of course, that there is rhyme or reason to its determination. First, let me say that much of the vagueness type of arguments that the Respondents are making similar to your question could be made equally with respect to the Commission's policy with respect to repeated utterances as well as isolated utterances.
If you take the "Saving Private Ryan" and the blues documentary example, those were repeated utterances cases. We are here because they challenged the Commission's change in policy to go from repeated utterances to consider enforcement actions in the case of isolated expletives where they met its contextual analysis and where it was explicit, graphic, shocking or pandering in the context.
Now, I think certainly there are going to be situations and this Court has indicated that the vagueness inquiry doesn't turn about coming up with hypotheticals at -- at the outer margins of the standard.
I think in the Pacifica case our reading of the Court's decision is similar to the D.C. Circuit's reading of that decision in the Action for Children's Television case, that implicit in the Court's decision in Pacifica was that it rejected a vagueness challenge to the Commission's definition of "indecency," which is the same definition that the Commission is applying today.