Shortly after I posted about the FCC’s broadcasting indecency policy heading to the U.S. Supreme Court, a senior writer from Law360.com interviewed me for a feature article she was working on in anticipation of the site’s new Media & Entertainment section.

Ordinarily, I would say thanks, and post a link to the article, but the article can’t be viewed without buying a Law360 subscription, so I’ve asked for and received permission to repost the article here. The article is well written and well researched, and includes the perspectives of a few different attorneys, one of whom was my lawschool mentor, Chris Fairman, who just published a book titled Fuck: Word Taboo and Protecting Our First Amendment Liberties.

FCC Indecency Policy Could Be F’d Before High Court

By Leigh Kamping-Carder

Law360, New York (August 8, 2011) — U2′s lead singer Bono could not have predicted his appearance at the 2003 Golden Globes, broadcast live on NBC, would have such a lasting impact on indecency law.

“This is really, really fucking brilliant,” he told an audience of assembled luminaries and at-home viewers, accepting an award for best original song. “Really, really great.”

That F-bomb had an explosive effect. After the awards show, the Federal Communications Commission found that NBCUniversal Media LLC had run afoul of the agency’s revamped indecency policy, which the Second Circuit subsequently threw out as unconstitutionally vague. This fall, the Supreme Court will weigh in on the constitutional challenge, after granting the FCC’s petition for certiorari in FCC v. Fox Television Stations, Inc. in June.

Indecency issues tend to split the high court along unpredictable lines, and a ruling at this early stage is difficult to predict. But the justices will almost certainly do damage to the FCC’s expanded enforcement efforts, either directing the agency to craft a clearer policy or even calling into question its power to regulate broadcast media altogether, according to experts who have been following the case.

“Communications law decisions, when they wind up at the Supreme Court, present interesting opportunities for the court to take a fresh look at the basis for FCC regulation,” said Robert Rini, a Rini Coran PC partner who has represented broadcasters before the commission.

The bedrock decision in indecency law dates to 1978, when the Supreme Court, in FCC v. Pacifica Foundation, found the commission did not violate the First Amendment by cracking down on a radio station that aired comedian George Carlin’s famously coarse “Filthy Words” monologue.

For nearly a decade after Pacifica, the FCC used a light hand, sanctioning only deliberate and repetitive uses of the seven words in Carlin’s piece. Over the ensuing years, however, the agency took a progressively broader approach, targeting repeated content found to be vulgar or shocking. (The FCC’s indecency regulations apply only to broadcast radio and television, not cable, satellite or the Internet.)

By 2001, the industry was clamoring for guidance. That year, the agency issued a policy statement holding that indecency rested on two issues: first, whether the words or depictions involved sexual or excretory acts or organs; and second, whether the content was “patently offensive” under contemporary community standards. The latter definition depended on context, but the FCC had an unspoken exception for isolated curses.

That exception didn’t sit well with the Parents Television Council and other watchdog groups, which began lobbying the agency with email campaigns. Supporters who had not even watched the offending shows could sign their names to complaints online, making it easier for the PTC to flood the agency with opposition.

The target of numerous complaints, according to the FCC, was Fox’s 2002 Billboard Music Awards, when the singer Cher tossed off a “fuck ‘em” to her critics. At the following year’s awards show, Nicole Richie, former star of reality show “The Simple Life,” said, “Have you ever tried to get cow shit out of a Prada purse? It’s not so fucking simple.”

Weeks after Richie’s appearance, Bono swore at the Golden Globes in January 2004, and the FCC cracked down.

In a March 2004 order, the agency deemed its prior policy statement on indecency “not good law.” It determined that Bono’s fleeting “fucking” could be considered patently offensive. Later, in a 2006 ruling on the Billboard broadcasts, the commission found that “fuck” had an inherent sexual connotation that made it indecent, regardless of context. However, the FCC did not assess fines against NBC and Fox because the rulings marked a departure from precedent.

Since then, the agency has raised the financial stakes, upping fines to a maximum of $32,500 for each F-word on each of a network’s affiliates. The increase resulted in a $1.2 million fine in 2004 for ABC affiliates that aired an episode of “NYPD Blue” showing a woman naked from the back and side. Then, in 2006, Congress passed the Broadcast Decency Enforcement Act, which increased the maximum penalty to $325,000.

“That is why this has become such a big issue — because it’s not like, ‘Oh it’s a parking ticket, I’ll just pay it,’” said Howard M. Liberman, a Drinker Biddle & Reath LLP government and regulatory affairs partner. “This is a lot of money.”

For the networks, the issue is not just the stiffer penalties and stricter enforcement: It’s the supposedly subjective and unpredictable way the FCC has imposed its indecency policy since the 2004 order on Bono’s appearance, which they claim promotes self-censorship and a chill on free speech. NBC, Fox, CBS Corp. and later ABC have all appealed the commission’s orders to the Second Circuit.

The networks claim the FCC’s enforcement is inconsistent, pointing out how the agency found Richie’s remark indecent, but approved ABC’s broadcast of “Saving Private Ryan.” (Though the film is laced with swear words, the FCC said its wartime setting would put viewers on notice of offensive language.) This apparent unpredictability has forced the networks to shy away from airing a 9/11 documentary, a political debate, a sitcom that discussed masturbation and live news programs, they claim.

“Clearly, the networks have in mind where the line is,” said Joseph Bahgat of Bahgat Law LLC, an entertainment attorney and former radio broadcaster. “The FCC doesn’t want to set a precedent by saying, ‘It was OK in this case because it was an accident.’”

The FCC, however, defends its approach since 2004 as context-specific and not vague, and argued in its petition that the Second Circuit’s decision to scrap the policy represented an “extraordinary hobbling of the commission’s enforcement efforts.”

The FCC gives broadcasters a “safe harbor” after 10 p.m., and has let them off the hook for penalties when the agency departs from established law, as it did with the cases involving Bono, Cher and Richie. Moreover, focusing solely on a list of dirty words would raise its own free speech concerns, the FCC argues.

“What the court below considered undue flexibility … is simply analysis of context — a longstanding feature of FCC indecency regulation that the court in Pacifica viewed as a virtue of the commission’s approach,” the FCC said in its Supreme Court petition.

Though FCC v. Fox will likely split the current Supreme Court, it’s the kind of case that makes strange bedfellows of the liberal and conservative justices, according to experts.

“Free speech cases, especially big ones like this, really cut across ideological lines on the court, so it’s hard to piece together sometimes exactly who’s going to be in favor and who’s going to be opposed,” said Christopher M. Fairman, an Ohio State University law professor who recently published the book, “Fuck: Word Taboo and Protecting our First Amendment Liberties.”

The case already went before the high court in 2009, when a 5-4 majority found the FCC’s new approach to indecency regulation did not violate the Administrative Procedure Act. The opinion, which skirted the constitutional challenge, included two concurrences and three dissents, and involved two justices who are no longer on the bench. 

As for the second time around, the only sure outcome is silence from Justice Sonia Sotomayor, whose time on the Second Circuit forced her recusal. But it’s almost certain that Justice Clarence Thomas will side with the networks, since he has gone on record questioning the viability of Pacifica and other decisions that upheld the FCC’s power to regulate broadcast programming, according to experts. The strict constructionist Justice Antonin Scalia is another probable vote against the FCC, experts said.

Experts predict there will be at least two additional votes in favor of the networks, but they are split on just whose votes those will be. A 4-4 tie would affirm the lower court but not set a Supreme Court precedent. 

In one scenario, the liberal wing — consisting of Justices Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan — could rule as a bloc and reject the FCC’s policy, siding instead with the networks.

On the other hand, Justice Breyer might find that, as Bahgat put it, the framers of the Constitution never intended people to say “fuck” on the radio, and endorse the FCC’s policy. And, as the newest member of the court, Justice Kagan’s First Amendment views are still unknown, so it’s possible she may break rank even if her liberal colleagues stick together, attorneys said.

Justice Samuel Alito could go either way, ruling in favor of the networks, given his traditional support for big business, or in favor of stricter indecency standards, given his conservative inclinations. And then there’s Justice Anthony Kennedy, the traditional swing vote.

Of course, it’s possible the court will reverse the Second Circuit and defer to the FCC, which has authority under the Public Telecommunications Act of 1992 to regulate indecency on broadcast radio and television, Liberman said.

But it’s more likely the court will decide the FCC erred with the policy shift, sending it back to the commission with directions to define a new, more tangible approach, experts said. That could include something like a prohibition against sustained expletives or nudity, coupled with less punitive treatment for accidental or isolated offenses, they said.

“One may argue that may have been the wrong bright line to draw,” Rini said of the approach following Pacifica. “But given that this is an inherently difficult process to parse through, that system worked.”

On the other hand, the Supreme Court could go further, taking the opportunity to decide that, in today’s expanded and splintered media landscape, the FCC no longer has the authority to regulate indecency standards on broadcast media.

“The court might take a broader step and say, ‘This may have had a time and a place, but we’re beyond that now; it’s unconstitutional to try to regulate this,’” Liberman said.

The reasoning behind letting the FCC regulate indecency on broadcast — and not cable or satellite — rests on the so-called scarcity argument: The public airwaves are a limited commodity, and in exchange for access, the networks must abide by certain regulations, experts said.

“One who has been granted a license to broadcast over scarce public airwaves serves in a sense as a fiduciary for the public,” the Parents Television Council said in an amicus brief supporting the FCC. “The court must decide in this case if that is still true today.” 

Broadcast television is still a powerful force in today’s media landscape, and one that is uniquely accessible to children, according to the PTC, which backed many of the FCC’s complaints over Bono’s and Richie’s appearances. More than 43 million U.S. homes depend solely on the broadcast networks for their television, the group said. 

But with the rise of cable and the Internet, the scarcity argument is looking increasingly shaky, and the question of whether broadcasters should be subject to different indecency standards is ever trickier, experts said. When a viewer is flipping through the channels, does he know the difference between a network like ABC and a basic cable channel like TBS? Liberman asked.

Fox has already vowed to argue the “obsolescence” of Pacifica based on the notion that it no longer makes sense to target the networks. If the Supreme Court agrees, and throws out the scarcity argument, networks could challenge other aspects of FCC authority, such as controls on children’s television and station ownership, Liberman said.

“So much has changed since the ’70s when Pacifica was written that creates all this,” Fairman said. “Cable is no longer a luxury but the way most people get their information, and it’s rapidly being replaced by the Internet.”

“I don’t like to hear people with filthy mouths out in public any more than anyone else does,” he said. “But I don’t think the government needs to be the one washing people’s mouths out with soap.”

— Editing by Jocelyn Allison and John Williams.

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