Constitutionality of indecency regulation questioned

The FCC and Fox argued before the U.S. Court of Appeals in New York (2nd Cir.) this week over the constitutionality of the FCC’s enforcement of its indecency policies, Broadcasting and Cable reported.

The magazine quoted some observers saying that the judges were skeptical of the commission’s position, and that “all three judges were clearly ready to find that the FCC’s policies are unconstitutional.”

The case began when the commission fined Fox for broadcasting “vulgar expletives” by Nicole Richie on the live broadcast of the 2002 Billboard Music Awards and again by Cher on the same show the following year. Before that action, the commission had not fined broadcasters for "fleeting expletives" that clearly were not scripted, and only issued fines when the words used depicted "sexual or excretory functions."

The case went before the Supreme Court on the issue of whether the commission had properly modified the rules under which it decided to fine the network, but it was sent back to the lower court to consider the First Amendment implications of the commission’s indecency rules.

Judge Peter Hall challenged FCC lawyer Jake Lewis on whether the use of the words “fuck” and “shit” during the oral arguments would been deemed indecent if included in a broadcast about the arguments, Broadcasting and Cable reported. When Lewis said there is a higher standard for newscasts, Hall responded that “allowing swearing in newscasts didn’t seem to square with” the FCC’s argument that indecency laws are meant to protect children.