Supreme Court Hears Fleeting Arguments on Fleeting Expletives

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Supreme Court Hears Fleeting Arguments on Fleeting Expletives

Tue Nov 04, 2008 @ 03:19PM PST

By Eriq Gardner

Cherbillboard Supreme Court Chief Justice John Roberts won't be offering any amusing distractions from today's election. The court has rejected a motion by C-SPAN, Media Access Project, and others to immediately release today's oral arguments in FCC vs. Fox et al, a case examining whether the FCC has been arbitrary and capricious in enforcing policies regulating fleeting uses of expletives on broadcast television. This means that the tapes won't be available until next spring, although we'll have a transcript up and some analysis soon.

Solicitor General Gregory Garre will argue for the petitioner, and Carter Phillips of Washington, D.C., will argue for the respondent.

UPDATE: Here's a link to the transcript.

Quick take after the jump:

It's doubtful that any of the arguments here swayed the justices, who with the exception of some of the more liberal ones, offered little indication of how they will rule.

The discussion was at times funny — there's light banter about the literal vs. metaphorical nature of curse words, whether dirty language is indeed shocking in the 21st century, whether state-of-the-art technology is truly a five-second taped broadcast delay, and whether the justice's own sense of humor should be taken into account (Justice Stevens: "you can't help but laugh...Is that a proper consideration, do you think?" Justice Scalia: --"Oh, it's funny. I mean, bawdy jokes are okay if they are really good.") — but also politely and boringly clean.

Much of the discussion involved determining how the FCC is allowed to change its position, and the standard by which "change" should be measured as arbitrary and capricious. The case will allow the Supreme Court to re-address Pacifica, but don't be surprised to see somewhat of a split-decision, where some of the free speechers on the court (Stevens, Ginsburg, Scalia) push the FCC to be less of a Church Lady towards fleeting dirty language, while some of the technocrats (Roberts especially) preserve the agency's ability to change their mind every once in a while.

We'll have a fuller analysis and reaction from others tomorrow.

UPDATE2: Based on early reviews (THR, WSJ, WP), it appears that everyone mostly agrees with our assessment yesterday that yesterday's Supreme Court hearing in FCC vs. Fox offered little indication on the outcome and only moderate amusement. (These are lawyers, after all.)

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The Hollywood Reporter, Esq. blog focuses on how the entertainment and media industries are impacted and influenced by the law. It is edited by Matthew Belloni with contributions from veteran legal reporter Eriq Gardner and others. Before joining The Hollywood Reporter, Belloni was a lawyer at an entertainment litigation firm in Los Angeles. He writes a column for THR devoted to entertainment law. Gardner is a New York-based writer and legal journalist. Send tips or comments to [email protected]

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