(NOTE TO READERS: The lower court decision discussed below, found by locating the opinion in 06-1760 at this link, contains explicit language that some readers will find not to their taste. The blog, in a gesture of modesty and delicacy, will avoid repeating those words, substituting a euphemism.)

UPDATE: The Justice Department application described here can be found at this link.)

The Justice Department has notified the Supreme Court that it will be filing an appeal seeking to restore the government’s power to penalize licensed broadcasters for airing “fleeting expletives” — especially, “the F-Word,” even if it is uttered only a single time during a broadcast and even if it is used to provide emphasis or exaggeration rather than to describe a sex act. U.S. Solicitor General Paul D. Clement disclosed that plan in an application filed Monday, seeking more time to prepare the petition (Application 07A155). The deadline for the filing is now set at Nov. 1, under an order issued on Monday by Justice Ruth Bader Ginsburg.

At issue in the appeal will be a 2-1 decision by the Second Circuit Court on June 4, finding a switch in policy by the Federal Communications Commission dating to 2003 to be arbitrary, but giving the FCC a chance to provide an “adequate explanation” for the shift. The majority, however, opined that it was doubtful that the FCC could find a rationale that would “adequately respond to the constitutional and statutory challenges raised by” broadcasters, but nevertheless said it should have the chance to try. “We can decide this case on this narrow ground,” the majority said.

The policy, challenged in the Circuit Court by Fox Television Stations, Inc., and other broadcasters, is sometimes referred to as the “Golden Globes” policy because it was first pronounced in the FCC’s reaction to a comment by a popular musician, Bono, when NBC-TV broadcast live the Golden Globe Awards on Jan. 19, 2003. Accepting an award, Bono suggested that the event was “really, really…brilliant” — with the ellipsis here filled by a variant of “the F-Word” to say just how “brilliant” he thought it was.

That policy replaced a policy in place for nearly three decades before that, sometimes referred to as the “fleeting expletives” policy. That now-discarded approach by the FCC said the agency would not treat as indecent, and thus not a violation of federal law, if a “patently offensive” word such as “the F-Word” was uttered on the air in only a “fleeting and isolated” way. That was the policy that had gradually developed at the Commission following the Supreme Court’s 1978 decision in FCC v. Pacifica Foundation, ruling that the FCC did have the authority under federal law to regulate broadcast speech that was “indecent” but not obscene. Later in 1978, the FCC issued an opinion saying that it was “the repetitive occurrence” of indecent words that would run afoul of federal law.

In its switch to the “Golden Globes” policy, the Commission found that any use of any variant of “the F-Word” necessarily had sexual connotations, so fell within the scope of indecency when defined as “patently offensive” through descriptions on the air of “sexual or excretory activities and organs, at times of the day when there is a reasonable risk that children may be in the audience.” Said the FCC at that time: “The ‘F-Word’ is one of the most vulgar, graphic, and explicit descriptions of sexual activity in the English language.” It cast aside all prior rulings based on the “fleeting expletive” approach.

Although broadcasters asked the agency to reconsider its new policy, the agency took no action on those requests, but continued to apply the new approach to broadcasts that contained even one use of the prohibited word. It was these later applications of the single-use ban that led to the case in the Second Circuit.

Specifically, the Circuit Court’s ruling in Fox Television Stations, Inc., et al., v. FCC, involved Commission findings of indecent and profane utterances in two instances. Both involved Fox’s broadcast of the Billboard Music Awards, in 2002 and 2003. In 2002, the singer/actress Cher used the prohibited word in an acceptance speech. In 2003, actress Nicole Richie, who was helping to present the awards, used a variant of it, along with a reference to “cow —–.” In response to Ms Richie’s use of the epithet, the FCC ruled that any use on the air of that word, too, would be unlawful.

Broadcasters challenged the FCC in the D.C. Circuit and in the Second Circuit, and the cases were consolidated in the Second Circuit. The cases returned to the FCC for a time, then were revived in the Circuit Court.

In an opinion written by Circuit Judge Rosemary S. Pooler and joined by Circuit Judge Peter W. Hall (with Senior Circuit Judge Pierre N. Leval in dissent), the Circuit Court noted that the broadcasters had raised a wide array of challenges to the “Golden Globes” approach. But, while confining its ruling to the single question of whether the policy had been adequately explained, the majority said it was ruling on the present validity of the entire policy, not just its application to the two Fox broadcasts. That policy, it said, lays down “a generic standard” that is itself subject to judicial review.

Accepting the broadcasters’ contention that the FCC had made “a 180-degree turn,” an “about-face” without justifying it sufficiently, the Circuit Court majority said the Commission had a legal obligation to explain why the original reasons behind the former “fleeting expletives” policy were no longer controlling.

The FCC had argued that it was switching because “an automatic exemption for ‘isolated or fleeting’ expletives unfairly forces viewers (including children)” to be subjected to the first utterance. That, the Circuit Court said, is not a “reasoned basis” for switching.

Since the FCC does not enforce its policy against news broadcasts, nor would it apply to a broadcast or oral argument in this case, or even to a replay of the two clips at issue to provide background information about the case, nor would it enforce the policy against such movies as “Saving Private Ryan” where the expletive is a part of the artistic character of the film, the Circuit Court said, it hardly suffices to justify the flat ban in other contexts on a theory that it was sparing the public and children from mere exposure to the first utterance of the banned words.

The majority found no adequate explanation in several other rationales that it said the FCC had discussed but only in “passing reference.”

Along the way, the majority noted that President Bush has publicly used one of the banned words, and Vice President Cheney another.

“The FCC’s decision,” it summed up, “is devoid of any evidence that suggests a fleeting expletive is harmful, let alone establishes that this harm is serious enough to warrant government regulation.”

In a section of the majority opinion titled “Constitutional Challenges,” which Judge Pooler’s opinion frankly labeled as “dicta,” the Circuit Court laid out its skepticism that the FCC can come up with a rationale sufficient to pass constitutional muster. It said it expected further litigation, and raised the prospect that the FCC, on remand, would merely provide more reasoning but not change its policy, so it offered its observations “in the interest of judicial economy.” “We question whether the FCC’s indecency test can survive First Amendment scrutiny,” it commented.

In returning the case to the FCC, the Circuit Court also suggested that it attempt a further explanation of its separate finding that use of the banned words was “profane” under the law, as well as “indecent.” The two Fox broadcasts were ruled “profane,” too, by the FCC.

Judge Leval, in dissent, said he found the FCC’s explanation sufficient, and commented that, if he were required to choose between the FCC’s prediction that a relaxation of its ban would lead to a flood of expletives on the airwaves or the Circuit Court majority’s prediction that that would not happen, “I would bet my money on the agency’s prediction.” He cited the growing usage in daily discourse of the banned words, and said that the cable TV channels “make liberal use of their freedom to fill programming with such expletives.”

The dissenting judge used only a brief footnote to dismiss the majority’s essay on the strength of the broadcasters’ First Amendment challenges.

Posted in FCC v. Fox Television Stations, Everything Else