The government, filing a major new test case on the power to bar vulgar language from radio and television, on Thursday urged the Supreme Court to rule that even a single use of banned words can be illegal. The government should not have to show that the expletive was repeated on the air, Solicitor General Paul D. Clement contended. The appeal, by the Federal Communications Commission and the United States, is now docketed as FCC, et al., v. Fox Television Stations, et al. (07-582). It appears that the Court, if it agrees to hear the case (seemingly, a strong likelihood), could decide it during the current Term. (To read the government’s petition and appendix, click here.)

At issue in the case is a policy switch that the FCC adopted in March 2004, abandoning the view of nearly 30 years that indecent language on broadcasts would be barred only if it was sustained or repeated and declaring, instead, that even a single use of “the F-Word” would be treated as illegal. The FCC has also made it clear that, among other single banned words, a four-letter word meaning excrement and some variations of the word “bull—-” are also banned. (The FCC does make exceptions, such as for news broadcasts or other situations in which the context suggests the words are not being used to convey vulgar meaning.)

The Second Circuit Court, in a ruling June 4, struck down that policy change, finding it to be arbitrary but allowing the FCC a chance to proivde an “adequate explanation” for the shift. It added, however, that it doubted that the FCC could find sufficient reasoning to defend the ban against a First Amendment challenge by broadcasters.

The FCC and the Justice Department, however, rather than attempting the probably futile exercise of providing a further explanation, decided to take the issue to the Supreme Court. The appeal is keyed to a question of statutory interpretation, not to constitutionality.The question presented is: “Whether the court of appeals erred in striking down the Federal Communications Commission’s determination that the broadcast of vulgar expletives may violate federal restrictions on the broadcast of ‘any obscene, indecent, or profane language,’ 18 USC 1464; see 47 CFR 73.3999, when the expletives are not repeated.”

Solicitor Gen. Clement contended in the appeal that the Second Circuit “adopted an analysis that directly conflicts with the approach toward broadcast-indecency regulation that this Court mandated in FCC v. Pacifica Foundation” in 1978.

The Circuit Court ruling “appears to have put the FCC to a choice between allowing any free use of any expletive no matter how graphic or gratuitous, or else adopting a (likely unconstitutional) across-the-board prohibition against expletives,” the petition argued. “There is no reason that the Commission must choose between those per se rules.”

Moreover, the appeal said, the Circuit Court should have deferred to the FCC’s view of what its powers were regarding indecent broadcasts.

The FCC policy switch was tested in the Circuit Court by Fox TV and other broadcasters after it was applied to the use of “the F-Word” by actress-singer Cher at the 2002 Billboard Music Awards on Fox TV and the use of that word and “the S-Word” by actress Nicole Richie on the same awards show a year later, also on Fox TV.

The policy of often referred to, in the industry, as the “Golden Globes” policy because the switch first came after rock singer Bono used “the F-Word” as an adjective during the 2003 Golden Globe Awards on NBC TV.

In the government appeal, Clement acknowledged that, since the Circuit Court had only sent the case back to the FCC for a new explanation of its change in policy, it would not merit Supreme Court review — but that would be so only for “an ordinary case.” Here, Clement said, “the Commission has already fully explained its policy, and the opinion of the court of appeals makes clear that the Commission is unlikely to be able to say anything on remand that the court would deem satisfactory to justify that policy.”

The impact of the Circuit Court ruling, the government went on, is not limited to the Billboard Music Awards utterances in 2002 and 2003. “The decision effectively reinstates an automatic per se exemption for the broadcast of isolated expletives — an exemption that the Commission has expressly disavowed as inconsistent with its obligation to enforce responsibly the prohibition on broadcast indecency. Indeed, the decision calls into serious question the Commission’s authority to regulate even repeated uses of offensive sexual or excretory language” — because the Circuit Court had remarked that such expletives are often used in everyday conversation without having a forbidden meaning.

The appeal noted that the FCC has pending before it “hundreds of thousands of complaints regarding the broadcast of expletives, both isolated and repeated.” There is no value, it added, in allowing the issue to percolate further in lower courts because most of the major TV networks are located in New York City, and thus will return to the Second Circuit if the policy is applied to them.

Fox and the others who challenged the policy have 30 days to file a response (unless they seek and obtain an extension of time to do so). The case might be ready for the Court to consider initially in January. It probably would have to be granted in January for it to be heard and decided this Term.

Posted in FCC v. Fox Television Stations, Uncategorized