The Second Circuit Court in New York shot down the FCC’s attempt to reverse its own long-standing policy and penalize broadcasters for allowing fleeting expletives over their airspace. Solicitor General Paul D. Clement, on behalf of the Bush administration and the FCC, is going to try for a Supreme Court appeal. The battle was between the FCC and Fox over incidents occurring on live awards programs.
FCC Chairman Kevin Martin reacted swiftly, saying, "I am pleased that the Solicitor General will be seeking Supreme Court review of the Second Circuit’s decision. I continue to support the Commission’s efforts to protect families from indecent language on television and radio when children are likely to be in the audience."
The Solicitor General’s decision follows an attempt led by Rep. Chip Pickering (R-MS) to use legislative instruments to make fleeting expletives actionable, an effort that was opposed recently by the ACLU. Discussing Pickering’s effort, First Amendment Legislative Counsel Marvin Johnson said, "Now is the time for common sense not new unworkable regulations. It is likely that any regulations will violate the First Amendment rights of adults who watch television. If Uncle Sam wants a role in America’s living rooms, then Congress should consider funding media literacy education for parents and not go down this path that will only lead to more lawsuits. No children will be helped by this legislation."
RBR/TVBR observation: This case represents a very narrow lane in the entire broadcast indecency issue. At the beginning of his chairmanship, Michael Powell put out indecency guidelines that clearly reaffirmed the fleeting and inadvertent standard. The Bono incident at the heart of the Fox case was dismissed by the FCC Enforcement Bureau on fleeting grounds. Then came Nipplegate, and Powell suddenly changed the rule for certain words, including the "f-bomb." Part of the problem is that the FCC did it without going through the usual procedure of 8th Floor debate and the accumulation of public comment. Pickering is trying to get around that by making it legal to punish certain fleeting expletives regardless of circumstances. The problem is that it makes any live broadcast a risk. It’ll be interesting to see how the relatively new Supreme Court lineup looks at this, if they decide to take the case.