The Supreme Court has agreed to hear an appeal by the FCC of the "fleeting expletives" case, where the Second Circuit Court of Appeals threw out the FCC actions fining stations for isolated incidents where a profanity was uttered on the air in a live program. The cases stem from the Golden Globes and Billboard Music Awards, where over-exuberant winners let slip one of those words that you are not supposed to say on TV. The Court of Appeals found that the FCC had not justified its departure from prior Commission decisions where such conduct was not sanctioned. The Court also suggested that the Commission’s decisions did not give broadcasters enough guidance as to when the use of such words was permissible, and when it was prohibited. We have written previously about this case a number of times, including here and here. Should the Court determine that the FCC was justified in acting as it did, this may leave the FCC open to taking new actions in the indecency area – such as the suggestion that one Commissioner recently made that indecency enforcement in connection with video delivered to mobile phones should be explored.
A couple of words about some of the commentary written about this case. First, while many stories have stated that this is the first indecency case to reach the Supreme Court in 30 years since the famous Seven Dirty Words ( or the Pacifica) case, in fact there have been several other more recent cases that have dealt with the indecency issue – though not in the broadcast context. Cable and Internet indecency rules have been adopted by the FCC or by Congress, and usually overturned as not constituting the least restrictive manner of preventing children from being exposed to "indecent" speech – speech which is constitutionally protected (as opposed to obscenity which has no protection as it has no socially redeeming significance) – but from which children can be sheltered. However, in the cable and Internet cases, the regulations have been overturned because there were other less restrictive means of limiting children’s access to the content, e.g. through filters or restrictions on access to specific channels or websites.
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.