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.