Supreme Court to hear Fox indecency case

The US Supreme Court has agreed to decide whether the FCC has the authority to fine broadcasters for “fleeting expletives,” taking up the Commission’s appeal of a case in which its actions against the Fox stations for comments by Cher and Nicole Ritchie during two different broadcasts of the Billboard Music Awards were struck down by a federal appeals court. This will be only the second time that the Supreme Court has taken up an FCC indecency case – the first being the 1978 decision upholding a sanction against WBAI-FM New York for broadcasting George Carlin’s seven “Filthy Words” comedy routine.

The Fox O&Os weren’t actually fined for the use of the F- and S-words by the two celebrities, since the FCC was in the midst of changing its policy. It admonished the stations for airing the fleeting expletives and said that, going forward, such broadcasts could result in fines. Ironically, the lack of fines made it easier for the New Corporation-owned Fox stations to move through the appeals process and get the matter before the federal courts. NBC is appealing a similar admonition for airing Bono’s use of the F-word on a broadcast of the Golden Globes awards show.

Fox appealed to the 2nd US Circuit Court of Appeals in New York and won. The court ruled that the FCC had failed to adequately explain why it had changed its policy on fleeting expletives. It was the FCC, having lost, which has appealed to the Supreme Court.

"NAB is pleased the Supreme Court has agreed to review this case, and that Justices will provide badly-needed clarity to both broadcasters and policymakers on this critically-important First Amendment case. We're confident that whatever the outcome of this case, local radio and television stations will be mindful of broadcasting's long history of providing programming that will reflect and respect the audiences that we serve," said NAB Executive Vice President Dennis Wharton.

RBR/TVBR observation: Leave it to government to create a mess where there had been none. The fleeting expletives exception to the broadcast ban on certain indecent words was one of the few constant and clear parts of the Commission’s ever-changing and unpredictable indecency policy – until the Commissioners decided to set that into motion as well. The safe bet is that the Supreme Court will slap down the FCC. However, the high court tends to focus on narrow issues wherever possible, rather than broad matters of law, so it is unlikely that the justices will get to the point of considering whether the proliferation of alternative media sources has made the whole idea of regulating indecency on only one type of media a pointless exercise, which would amount to an overturn of the 1978 WBAI case.

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