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Media & Entertainment Law

: Sports Law Blog

Supreme Court Grants Cert in 'Fleeting Expletive' Case

By Rick Karcher, Michael McCann, Geoffrey Rapp, Greg Skidmore, and Howard Wasserman

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In a case that has application to sports broadcasters, the Supreme Court will hear an appeal involving the validity of the FCC's "fleeting expletive" standard for determining broadcast indecency. As I wrote in prior blogs (and in Sports Business Journal), the new standard -- which treats the accident airing of a single profanity as within the definition of indecency -- may be especially risky for live sports broadcasts. As noted, it can force broadcasters to take costly steps to avoid the unintended airing of four-letter words from fans, coaches and players and heap fines of up to $325,000 per incident on television and radio networks, as well as individual licensees.

The U.S. Court of Appeals for the Second Circuit invalidated the rules and remanded the matter back to the FCC because the agency failed to give an adequate justification for applying indecency to fleeting expletives. It did not address the First Amendment claim head-on, but a majority, in dicta, noted doubts about the constitutional viability of those rules.

The cert petition filed by the Department of Justice discusses administrative law issues (the amount of deference given to an administrative agency's policies) and substantive ones (involving whether the appeals court, by its actions, contradicted the import of the Supreme Court's Pacifica ruling).

I get the feeling that the Supreme Court will decide the First Amendment implications of the proposed indecency standard head-on. The reasons: (1) since the matter was remanded to the FCC for further justification, why wouldn't the court simply wait until the next round of likely litigation; (2) although this may surprise some, the present court is sympathetic to free speech issues; (3) the time is overdue since the court dealt with the issue of indecency in broadcasting as Pacifica was decided three decades ago.

Arguments will be scheduled for next fall.

Full post as published by Sports Law Blog on March 19, 2008 (boomark / email).