If anyone is anxiously awaiting to hear “fuck” echo through the Supreme Court chambers during oral arguments in Tuesday’s fleeting expletive case, they’re going to have to attend the session or sit tight for a few months.
Chief Justice John Roberts has refused C-SPAN’s request to immediately release an audio recording of the arguments in FCC v. Fox, which centers on the use of four-letter words on television. That means the public has to wait until the end of the Supreme Court’s term – next spring – before they get to hear the arguments.
The case is the high court’s most significant in the realm of broadcast television regulation in 30 years, going back to FCC v. Pacifica Foundation, in which the Supreme Court ruled that the government can prohibit indecent and vulgar language, even if it does not rise to the levels of obscenity. That case dealt with a George Carlin monologue, “Filthy Words," in which he spouted out numerous expletives in a 12-minute radio broadcast airing in the middle of the afternoon.
Since Pacifica, the FCC has had a policy of fining broadcast stations only for repeated uses of expletives. Additionally, the commission could only regulate indecent language on radio or television broadcasts airing between 6 a.m. and 10 p.m.
But the FCC took a second look at its policy in the wake of a cluster of high-profile outbursts involving celebrities in 2002 and 2003 – both Cher and Nicole Richie said “fuck” on the Billboard Music Awards, which aired on Fox, and Bono shouted out “fucking brilliant” during the live NBC broadcast of the Golden Globes.
The FCC adopted a new policy in 2004 of fining stations for “fleeting expletives” — one-time, accidental uses of offensive words.
But while the FCC told the broadcasts it was imposing a ban on fleeting expletives, it was not sanctioning NBC or Fox for the above-mentioned slips.
So the television networks filed a lawsuit, arguing that since the FCC was not enforcing the policy in a consistent manner, the policy should be struck down.
The U.S. Court of Appeals in New York (2nd Cir) in 2006 did strike down the FCC policy under an administrative law statute. The court did not reach any First Amendment issues.
The Court held the policy was “arbitrary and capricious,” which means that it’s not enforced with regularity. For example, the FCC conceded to the Second Circuit that it would not punish the broadcast of indecent language if it was used for journalistic purposes. Likewise, when the broadcast of the Second Circuit oral arguments aired, the FCC said it was not indecent or profane – though many expletives were uttered in the courtroom.
Additionally, the Court held that the FCC needs to show valid reasons for changing the policy: “While the FCC is free to change its previously settled view on this issue, it must provide a reasoned basis for that change,” the Court held.
The FCC appealed the case to the Supreme Court. The question the Court will consider on Tuesday is largely an administrative one – whether the FCC’s policy violates administrative law. However, there are First Amendment implications of the case: If the Court finds that the FCC does have the authority under the administrative law statute to ban “fleeting expletives” it will then have to consider whether that policy raises constitutional concerns.