Posted on April 21, 2011 by David Oxenford

FCC Decides to Appeal Indency Cases to Supreme Court

The FCC's indecency rules have, in recent months, twice been declared unconstitutional by the US Court of Appeals for the Second Circuit - essentially finding that the FCC's policies imposed unconstitutional restrictions on speech as they did not give broadcasters any way of determining what was permitted and what was prohibited.  After seeking several extensions of time to determine whether to seek Supreme Court review of the Court of Appeals decisions, the FCC today released its Petition for Certiorari to the high court.  The Supreme Court need not hear this request for review though, given its previous decision on these rules (which we wrote about here), and the high publicity and public interest in this subject, the case could quite well end up on the schedule.

This appeal deals with two cases.  First, it seeks review of the decision of the Court of Appeals throwing out the fleeting expletive admonitions given to Fox network stations for the broadcast of two Billboard Music Award shows that contained expletives, one by Cher and one by Nicole Richie.  Following the precedent set by the Golden Globes case (where Bono used the "F word"), the Commission held that the use of one of these single words, even if not used in a sexual context, were inherently indecent.  The second case covered by the Supreme Court petition was for the depiction of bare female buttocks in the program NYPD Blue - resulting in $27,500 fines on a number of ABC stations.  This decision was also overturned by the Court of Appeals.

In the last go-round at the Supreme Court, the Court of Appeals had not reached the constitutional issue.  Instead, the Court of Appeals threw out the FCC rules simply because the recent decisions were not consistent with precedent (though the Court had suggested that the rules were unconstitutional, but that suggestion was not essential to the decision).  The FCC had abandoned their policy of needing repeated use of dirty words (like in the George Carlin routine - Seven Words You Can Never Say TV - which resulted in a fine not because you can't say these words on TV, but because the use of these words were repeated - see our post here) before they took action.  Thus, the majority of the Supreme Court justices addressed only the issue of whether the FCC was justified in changing its policies to sanction stations for a single isolated use of an expletive and to otherwise tighten its enforcement policies on indecency.  While the various concurring and dissenting opinions written by the Justices suggested that there might well be 5 Justices who felt that the FCC's rules and policies were unconstitutional, the Court did not finally address that issue, but instead sent the cases back to the Court of Appeals to address issues including the constitutional question.  When, after consideration following the remand from the Supreme Court, the Court of Appeals did find these rules and policies unconstitutional, it set the stage for the current request for review.

The Supreme Court does not move fast - this is not a case that we will see briefed and argued and decided before the 11 o'clock news.  The Court must first act on the Petition, and if it accepts review, schedule briefs and hold an oral argument.  So it may well be more than a year before we see a decision, which may bring some clarity as to what kind of indecency enforcement the FCC is able to do. 
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Posted on July 16, 2010 by Brendan Holland

Further Analysis on the 2nd Circuit Decision to Invalidate the FCC's Policy on "Indecent" Broadcasts

As we wrote earlier this week, the US Court of Appeals for the Second Circuit on Tuesday struck down part of the FCC's indecency rules, finding that the rules were too vague and had an undue chilling effect on broadcasters.  DWT's First Amendment experts have now taken a closer look at the Court's decision in Fox Television Stations v. FCC and have released an advisory with further analysis.  The advisory, available here, provides further details and insight into the decision from Robert Corn-Revere and Ronald G. London.  Given that there are several other indecency cases still pending before the courts, including the Second Circuit, it will be interesting to see what impact this decision has on those pending cases and whether the FCC's indecency rules can ultimately withstand constitutional scrutiny. 

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Posted on July 13, 2010 by David Oxenford

Court of Appeals Strikes Down FCC Indecency Rules

The US Court of Appeals for the Second Circuit today struck down the FCC's indecency rules, finding that the rules were so vague as to not put broadcasters on notice of what programming was prohibited and what was permitted.  Today's decision was reached following a remand of this case to the Second Circuit by the Supreme Court.  The Supreme Court's decision did not resolve all questions about the FCC's rules, instead only deciding that the lower court's prior decision voiding the rules was not justified.  The prior Second Circuit decision had not been decided on a constitutional basis, but instead it was based on the Court's perception that the FCC had failed to justify its departure from prior FCC precedent that had excused broadcasters from liability for fleeting expletives.  The Supreme Court found that the departure from prior precedent was justified.  The Supreme Court left open the issue of whether the rules were constitutional, and sent the case back to the Second Circuit for further consideration.  In today's decision, the Second Circuit takes up the constitutional review left open by the Supreme Court, and has determined that the vagueness of the FCC's guidelines and the inconsistency in its decisions chilled the First Amendment rights of broadcasters in violation of the First Amendment. 

The Court, in reaching its decision, looked at a number of the Commission decisions on indecency which have arisen since the Commission started its enhanced enforcement of these rules in 2003.  After reviewing the cases, the Court felt that the FCC could not logically articulate when the use of certain prohibited words would be punished.  In one passage, the Court asks how the FCC can find that the broadcast use of expletives in the fictional movie Saving Private Ryan were permissible as the words were essential "to the realism and immediacy of the film experience for viewers", yet at the same time find that these same words did not rise to that same level of importance when spoken by real people in the PBS documentary The Blues.  The Court then cited numerous instances where broadcasters felt that their speech had been chilled - often refraining from airing significant programming for fear of FCC fines.  For instance, the Court cited one station that refused to cover a political debate as a candidate had previously used a forbidden word in a prior debate, and another case where stations did not run a documentary about emergency workers and the 9-11 tragedy as the documentary contained some actual footage from the Twin Towers, where emergency workers used some of those forbidden words. 

So what's next?  No doubt, we have not heard the last of the indecency rules.  The FCC could appeal this case back to the Supreme Court.  Even were the Second Circuit's decision upheld, that would still not be the end of the story, as the Second Circuit left open the possibility that the FCC could craft new rules that would not be so vague as to be unconstitutional.  So we may well be hearing about the controversy about the FCC's indecency rules for many years yet to come.  Watch this space for more further developments.
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Posted on May 16, 2009 by David Oxenford

Janet Jackson Case Sent Back to Court of Appeals - Could There Be An Even Greater Impact on Broadcast Regulation?

In light of the recent decision upholding the FCC's right to sanction licensees for violations of the FCC's Indecency rules for "fleeting expletives" in the Golden Globes and Billboard music awards, i.e. isolated profanity on the airwaves, the Supreme Court also remanded the Janet Jackson case to the Court of Appeals.  The one sentence remand (see page 2 of the list of orders) was so that the Court of Appeals could consider the impact of the fleeting expletives case on the Court of Appeals decision throwing out the FCC's fine on CBS for the fleeting glimpse of Jackson's breast during the Super Bowl half-time program.  The Third Circuit Court of Appeals that heard the Janet Jackson case had reached a decision very similar to the Second Circuit's decision in the Golden Globes case - finding that the FCC had not justified its departure from a policy of not fining stations for fleeting instances of prohibited speech or pictures, where the words or pictures were isolated and their broadcast was not planned by the station.  Given that the Supreme Court has remanded the case to the Court of Appeals, the lower court will now need to consider the same constitutional issue that the Second Circuit will consider in the Golden Globes case - while the FCC may not have violated administrative procedures in justifying its actions, are the FCC's indecency rules so vague and enforced in such a haphazard manner that they chill free speech or are otherwise unconstitutional?  Based on an analysis of the various concurring and dissenting opinions in the Golden Globes case, the Supreme Court might well decide the constitutionality issue against the FCC.  Could the final ruling in these cases have an impact far beyond the indecency question?

Two of the Davis Wright Tremaine attorneys involved in some of the indecency cases have written this memo, summarizing the Supreme Court decision in the Golden Globes case - pointing out how Justice Thomas seemed to imply that the constitutional basis of the FCC decision was suspect - even though he sided with the majority in finding that the FCC was justified in its administrative decision to find violations.  Justice Thomas seems ready to come down against the FCC on the constitutional issue were it to be squarely presented, questioning whether the Red Lion decision, justifying lesser First Amendment protections for broadcasters than other media outlets based on frequency scarcity, has continuing vitality.  Were this precept underlying the regulation of broadcast content to be undermined, the justification for much FCC content regulation could be in doubt.

Should the scarcity doctrine underlying the justification for allowing the FCC to treat broadcasters differently from other media fall, a decision in one of the indecency cases could have a broad impact on many of the other content regulations that are either already in place or are in the works - including the proposed localism rules, the potential resurrection of the Fairness Doctrine and perhaps even political broadcasting rules.  Yet some fear that such a broad decision could also erode certain benefits that broadcasters have received from being considered public trustees - such as the freedom from spectrum fees, cable carriage rights and some of the FCC policies that have the effect of limiting the movement of stations which, in some cases, may reduce competition.  Yet, through the years, many of those protections have eroded, and others are justified by the service that broadcasters provide - whether or not the Red Lion doctrine still applies.  Broadcasters may be willing to accept the trade off in order to be free of the kinds of content regulation that have hobbled them for so long - and which threaten to become more onerous under a new FCC (see, for instance, our post on the suggestion for a shorter license renewal term to allow for more review of a broadcaster's "public interest" performance). 

This issue could become very important to broadcasters as the indecency issue continues to unfold in this Janet Jackson case and many of the other indecency cases now pending before the Courts. 

 
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Posted on April 28, 2009 by David Oxenford

Supreme Court Upholds FCC Process in Deciding Fleeting Expletives Were Indecent, But Sends the Case Back to Court of Appeals to Decide Constitutionality

In a decision released today, the US Supreme Court upheld the FCC determination that fleeting expletives in the televised broadcasts of the Golden Globes and Billboard Music Awards violated the FCC's indecency rules.  In this case, called Federal Communications Commission v Fox Television Stations, Inc., the Supreme Court overturned the decision of the Second Circuit Court of Appeals, which had found the FCC decision to be arbitrary and capricious. The Supreme Court, in a 5-4 decision, determined that the FCC had adequately justified its departure from prior decisions in determining that it could sanction a station for a single "F-word" or "S-word" broadcast on that station outside of the 10 PM to 6 AM safe harbor.  However, the Supreme Court specifically declined to rule on the constitutionality of the indecency finding, as the Second Circuit had not made its decision on that ground.  The Supreme Court sent the case back to the Second Circuit for further consideration, recognizing that the constitutional issues with the FCC's enforcement policy might well be back before it again, "perhaps in this very case."

Thus, this decision was made on a very narrow basis - that the FCC had justified its decision to change its prior policies to find that a single fleeting expletive was actionable.  Decisions of administrative agencies like the FCC are given great deference by the Courts, as long as the agencies provide a rational basis for their decision, and as long as their decisions do not violate their statutory mandate or the constitution.  Here, the Court found that the Commission had provided a rational explanation of its departure from prior precedent., and had otherwise provided an explanation of its decision, so the Court was willing to find that the FCC had the power to make the decision that it did, overturning the Second Circuit's conclusion that the decision had not been rationally justified. 

The Supreme Court is often unwilling to make a sweeping decision when it can decide a case on narrow grounds.  Here, the Second Circuit had decided the case solely on the basis of its perception that the FCC has not provided a rational basis for its decision.  The Second Circuit had a discussion of the constitutionality under the First Amendment of the FCC's decision, and stated that it questioned whether the decision met constitutional muster, but because it threw out the FCC decision on the administrative law question, it did not finally decide the constitutional issue.  Thus, the Supreme Court, despite urging from the broadcasters in the case, declined to rule on the constitutional issue - sending it back to the Second Circuit for further consideration.

There were several concurring and dissenting opinions in this case - and we will write more about those discussions at a later time.  But, for now, while the Court has spoken, expect to hear more about the FCC's indecency policies in subsequent decisions, as the final word on the constitutionality of the policies has not yet been spoken. 
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