From the Fall 2009 issue of The News Media & The Law, page 25.
A Fox Television suit over expletives uttered during live broadcasts could become the first major constitutional challenge to the Federal Communication Commission’s indecency regulations since the 1970s.
Media organizations, led by Fox, filed suit against the FCC after it found incidents of indecency in two of the network’s live broadcasts. After the U.S. Court of Appeals in New York City (2nd Cir.) overturned the indecency findings, the FCC appealed to the U.S. Supreme Court, which ruled in April that the FCC had the authority to abandon the “fleeting expletive” exception in its indecency rules, which gave broadcasters a pass for unscripted profanities, and sent the case back to the lower court.
Justice Antonin Scalia, writing for the 5-4 majority, said Congress gave the FCC the authority to change its indecency rules but did not address questions about those rules’ constitutionality. Though Justice Clarence Thomas joined the majority, he directly questioned the constitutionality of the rules in a concurring opinion.
Now lawyers for Fox and other broadcasters are striking at the constitutionality of the new FCC rules. The FCC, Fox and other interested parties are filing another round of briefs that tackle the First Amendment question in the appellate court. The FCC submitted its brief in late October and oral arguments could take place as early as December.
Carter Phillips, Fox’s lawyer, argues that the FCC should not be able to punish broadcasters for expletives that are not willful or intentional and, more broadly, that the new indecency rules violate the First Amendment. He said the broader arguments could lead the Supreme Court to take up the case again.
“We already know that Thomas is willing to reconsider the whole area,” Phillips said. “You would expect that the four relative liberals would be sympathetic to our side of the case on this issue now.”
Media Access Project, NBC Universal and NBC Telemundo intervened in the case. CBS Broadcasting, ABC and local affiliates joined because its outcome would affect their broadcast rights.
The Fox suit began when the FCC found indecency in two broadcasts — Nicole Richie said “shit” and “fucking” during the 2003 Billboard Music Awards and Cher used the word “fuck” during the same show the year before. For decades, the FCC considered duration and context when determining whether broadcasters would be disciplined for airing expletives. If the word was deemed to be fleeting, it fell within the commission’s exception. The FCC tightened its restrictions the late 1980s, in 2001 and again after Bono, the lead singer of U2, described an award as “fucking brilliant” during the 2003 Golden Globes Awards show and viewers complained.
“Until recent times there were relatively few indecency cases,” said Andrew Schwartzman, president and CEO of Media Access Project. “What we’ve now got is a much more aggressive policy.”
After the FCC cracked down on expletives, it also increased its indecency fine limit and allowed each network affiliate’s broadcast of a single violation to be fined at that heightened limit, Fox said. A Sept. 16 brief in the Second Circuit said penalties for the network broadcast of a single expletive now could total up to $65 million.
Schwartzman of the Media Access Project said the new application of the fines leave broadcasters without much choice but to self-censor or pay for time-delay equipment. “This will mean a very significant limitation on hot news and will require use of time delays and other technological mechanisms that will interfere with on-the-spot coverage of news,” he said.
The regulations make it much harder for local broadcast stations, Phillips said. Live local broadcasting exposes them to risks, even if it’s for something as simple as a high school football fan yelling an expletive into the microphone, he said.
“The smaller stations, they don’t have the money to buy the delay system,” Phillips said. “Without any kind of protection created by the First Amendment, they’re essentially sitting on strict liability.”
Therefore, the smaller stations are under even more pressure to self-censor. “You’re not going to risk $350,000 fines if you can avoid it,” Phillips said.
Though Scalia supported the FCC’s authority to change its rules, he recognized that the commission’s regime could cause broadcasters to self-censor.
“Whether that is so, and, if so, whether it is unconstitutional, will be determined soon enough, perhaps in this very case,” Scalia wrote.
Thomas’ concurrence described problems with a “deep intrusion into the First Amendment rights of broadcasters” based on the nature of a medium. Both arise from two landmark rulings on broadcast regulation — Red Lion Broadcasting Co. v. FCC, a 1969 decision that upheld the fairness doctrine, which the FCC no longer enforces, and FCC v. Pacifica Foundation. In Pacifica, the court decided in 1978 that the FCC could ban a George Carlin radio monologue repeating seven expletives because the medium has a “uniquely pervasive presence” and the programming is “uniquely accessible to children.”
Thomas said that in Red Lion and Pacifica the court relied on “transitory facts” – not the Constitution — to apply the First Amendment to broadcasters, and that “technological advances have eviscerated the factual assumptions underlying those decisions.”
CBS, ABC and NBC took a hard line on Pacifica in a petitioners brief they filed with the appeals court in September. The brief argues that the increase in multichannel cable programming, satellite television, parental control software and Internet sites like YouTube.com and Hulu.com have transformed the media landscape since Pacifica, a narrow decision made in an early-cable, pre-Internet era where the Supreme Court found that broadcasting had “a uniquely pervasive presence.” These developments took away the constitutionally sufficient purpose of the FCC regulations, the networks argued in the brief.
Fox’s Phillips said the networks “have the luxury of being able to pitch for a harder argument.”
Phillips makes the First Amendment argument, but he focuses much of his brief on the narrower argument that the FCC cannot punish broadcasters unless they knowingly or intentionally air expletives. “We decided to play that argument harder since we’re the ones directly in the firing line here,” he said.
A Second Circuit decision on that issue alone might not spark further Supreme Court review, Phillips said. But the issue of intent would not help shield broadcasters from being fined for isolated scripted expletives. Therefore, Phillips said he hopes the court takes up the broader First Amendment issues.
Schwartzman says the court can leave Pacifica intact so long as they strike down the new FCC policy. “My speculation is that the Second Circuit, having been shot down once already, will likely look for a narrow ruling,” he said.
Even if parties in the case petition the Supreme Court after the Second Circuit rules again, the earliest the case could be heard is the fall of 2010.