Holy $#*&! Supreme Court Agrees To Review Indecency on Television

Posted by Eriq Gardner

Any day that a smiling mug shot of Supreme Court Chief Justice John Roberts is on the front page of the Hollywood Reporter is a happy day for the THR, Esq. blog. That's only one reason why the Supreme Court's decision to hear an appeal by the FCC that could decide how the agency regulates so-called "fleeting expletives" makes us very excited.

The case, FCC vs. Fox Television Stations (here's the Court's writ of certiorari), will be the first major review of obscenity regulation on TV and radio since FCC v. Pacific 30 years ago.That decision blessed FCC regulators in constructing policies aimed at tamping down indecency, but was generally construed by legal scholars and many government officials over the next two decades to mean that FCC regulators should tread carefully with their authority over the grey area that is "obscenity."

That all changed with Janet Jackson's bare breast at the 2004 Superbowl halftime show. The FCC and its Republican chair Kevin Martin increased its efforts to curtail indecency, including swear words uttered by musicians and celebrities at entertainment awards shows.

After Bono let an F-word fly at the 2003 Golden Globe Awards, the agency found that NBC stations violated the indecency standard because any use of the F-word inherently evokes a sexual connotation and is patently offensive under contemporary community standards. The Commission found the fleeting and isolated nature of the expletive irrelevant, cautioning that fleeting speech would henceforth be punishable as indecent.

The agency lived up to its word in March 2006, when it delivered a heavyweight slap to the entertainment community, addressing 60 outstanding complaints against television broadcasts, finding violations against 11 shows, and leveling seven fines, including a record $3.6 million fine against a single TV show,  CBS's "Without a Trace."

The industry got together and decided to sue the FCC, calling its rulings arbitrary and without a "reasoned analysis for departing from prior precedent." In court, lawyers for NBC, led by Miguel Estrada at Gibson Dunn & Crutcher, cleverly pointed to fleeting expletives made by President Bush and Vice President Cheney.

The Second Circuit granted review, and in a sharp rebuke to the F.C.C. and for the Bush administration, agreed with the networks.

Now the Supreme Court has decided to join the debate, which is somewhat of a surprise given the speed and nature of these cases.

Many might suspect that this more conservative court will favor the Bush Administration's side. However, the two new justices, John Roberts and Samuel Alito, have both edged towards strong Free Speech protections in their early decisions. And even Justice Scalia, who wrote a concurring opinion in Sable Communications v. FCC that upheld regulation on obscene interstate commercial telephone messages, has noted that the definition of obscenity should be seen on a ''sliding scale'' and regulated in a "narrow" manner.

If we had to bet on the outcome of this case, we'd slightly favor the TV networks to win on the merits. How the larger issues are addressed, and whether the Supreme Court will issue broader guidance to the FCC on how to achieve their objective, is anybody's guess.