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.