Supreme Court Hears FCC 'Fleeting Expletive' Case
On Tuesday morning, while most of the country focused on voter turnout and predicting how the chips may fall for Sens. John McCain and Barack Obama, the Supreme Court heard arguments in the hotly debated case, FCC v. Fox Television Stations. At issue was whether the commission provided an adequate explanation or acted arbitrarily and capriciously, in changing its policy to permit isolated uses of expletives on broadcast TV to be considered "indecent" under federal law. The transcript of the argument is available here [PDF].
It has been 30 years since the Supreme Court ruled for the first time that the Constitution allowed the government to ban the broadcast, on radio and TV, of vulgar words that were indecent, though not obscene, according to an overview of the case on the SCOTUS Blog. That was the ruling in FCC v. Pacifica Foundation. Justice John Paul Stevens, the author of the main Pacifica opinion, is the only member of the court still serving. This time, the FCC is back, seeking to enforce a more restrictive policy after a lower court ruled the FCC lacked grounds to target so-called "fleeting expletives." The case involves the single use of a vulgar word -- specifically, two four-letter words, one a sexual epithet, the other a bit of barnyard or toilet slang.
According to the SCOTUS Blog's analysis, the Supremes "spent a spirited hour Tuesday talking about dirty words, but nobody ever uttered one of them." Chief Justice John Roberts and Justice Antonin Scalia appeared to be the only ones to tip their hand by enthusiastically promoting government authority to ban “fleeting expletives” while the other members "wandered somewhat randomly through alternative legal principles," the blog said. The “big elephant in the room,” as Justice Ruth Bader Ginsburg referred to the possible First Amendment implications of the FCC’s indecency policy, did not appear likely to emerge as the basis for a ruling against the Commission and in favor of broadcasters, the blog said.
Progress and Freedom Foundation fellow Adam Thierer said the case will have profound ramifications for the future of the First Amendment and the regulatory treatment of old and new media platforms alike. "The FCC's new approach has created a confusing and arbitrary regulatory atmosphere that leaves many speakers wondering what they can and cannot say on broadcast television and radio stations," he said in a statement. Thierer argued that the court must also recognize how the FCC is being unduly influenced by a handful of vocal special interest groups who are "artificially inflating the number of indecency complaints and attempting to propagate the myth that they speak for the masses." The panel must not let them achieve a "heckler's veto" over content, he said.
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