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

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

On Monday’s edition of Morning Joe on MSNBC, host Joe Scarborough, while recounting a story about Obama Chief of Staff designate Rahm Emanuel, dropped the "F-bomb" – seemingly without even realizing that he did it.  He genuinely looked shocked after being told that he had not used the euphemisms that we’re using here, and apologized profusely, apologies that were even posted on the MSNBC website later in the day.  While the cast joked about the FCC fines that would be imposed, and discussed the legal ramifications about this incident, none seemed to recognize that cable – even basic cable – has not been subject to the same indecency regulation as over-the-air television, even though most basic cable networks generally observe the same standards observed by broadcasters to avoid offending their audiences (and perhaps inviting new attempts to regulate their operations.

Cases have generally held that cable, being a pay medium invited into the household, and with filtering technologies that allow particular channels to be blocked, does not have the same intrusive nature as the broadcast medium which comes in free to any house with a TV set and an antenna.  And, until recently when the V-Chip was introduced, over-the-air television did not have the same ability to block access to adult content.  It is interesting that this incident occurs only one week after the Supreme Court held its oral argument on the fleeting expletive case deciding if the inadvertent, unscripted use of a profanity should be subject to a fine.  If nothing else, this incident shows that mistakes happen even in the most unexpected places – who would expect that the host of a morning television program would slip up and let fly with an improper word?  This incident, and the cases before the Supreme Court, do not involve intentional, repeated use of profanity, like the George Carlin routine about which we wrote here, but instead just a fleeting isolated use of one of those "bad" words.  The FCC simply cannot demand perfection from its licensees without demanding perfection from society at large, which is clearly beyond the FCC’s jurisdiction. Continue Reading Joe Scarborough Drops the F-Word On Morning Joe – Lucky it Was on Cable

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.Continue Reading Supreme Court Agrees to Review Fleeting Expletives Case – Could FCC Extend Indeceny to Mobile Media?