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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. 

But perhaps the greatest misimpression of the Carlin routine is the widely held belief that there are in fact Seven Dirty Words that you can never say on the air.  In fact, that is not and has never been the FCC's holding.  In fact, until recently, there were no words that were specifically banned on the air - all had to be evaluated by context.  Even though recent FCC decisions have tried to make the "F-word" and the "S-word" into those words that you can never say on TV (or radio) outside the safe harbor, even those bans are not absolute as the FCC's approval of the airing of Saving Private Ryan during prime time hours has shown.  (and, as we have written before, these new rules have not fared well so far in the Courts and may be headed back to the Supreme Court for further review).  The other words in the Carlin routine have never been specifically prohibited in all contexts - some in fact have been deemed not by themselves indecent in subsequent FCC cases.  Instead, under the rules that the FCC has tried to enforce, a contextual review of the program must be done to determine if, in context, the words were used to shock or titillate, and whether they were used to describe sexual or excretory functions.  That is obviously a difficult issue to decide, and one that has taken up much legal time and argument since the Pacifica decision.  (See our memo, here, discussing some of the lines drawn by the FCC).

Yet, despite the fact that the FCC never adopted a list of Seven Words that You Can Never Say On TV, many broadcasters believe that they have, and we probably have Mr. Carlin to thank for that belief.  Perhaps there will be Carlin retrospectives on broadcast stations in coming days - but they are unlikely to run during the middle of the day.

Also, the popular press routinely talks about the "Seven Dirty Words," as if the Commission has always had a list of words that could not be said on broadcast stations.  In fact, there never was a specific list of words that could or could not be said.  Instead, until recently, indecency was judged more by context, making it difficult to determine what was permissible and what was not.   But, until the cases at issue here, the FCC did not routinely fine stations when an expletive slipped onto the air.  Even under the new regime, the FCC permitted stations to broadcast the prohibited words in certain cases where the context warranted it, e.g. in the broadcast of Saving Private Ryan on Veterans Day when introduced by John McCain.  Moreover, even under the recent procedures, the FCC went only so far as to conclude that the "F Word" and the "S Word" were always prohibited (except in the cases like Private Ryan where they were not prohibited), not all seven words that were featured in the George Carlin routine.

The other aspect of this case is the impact that it might have on the FCC and its regulatory efforts.  A decision upholding the Commission's right to regulate indecency - even fleeting expletives - could embolden the Commission to expand its enforcement efforts which, in last year, have been minimal except for the two recent television cases where the FCC was forced to act to avoid statute of limitations issues (see our posts here and here).  As one example of how the Commission could expand its enforcement, in a recent speech, Commissioner Deborah Taylor Tate suggested that the Commission should consider whether it has a role to play in regulating indecency in the mobile telephone environment.  The Commissioner applauded the voluntary efforts of a number of mobile communications companies to limit the distribution of adult content to children, but the threat of FCC intervention was also raised.  No indecency on cell phones in the future?

Thus, the decision of the Supreme Court in this case, which likely will not come until 2009, may have a crucial role to play in all areas of media regulation in the future.  Stay tuned to watch as these issues develop.