Legal Commentary

SCOTUS granted cert today in eight cases (full details courtesy of SCOTUSblog). Among them was FCC v. Fox Television Stations, in which the Court will review whether the FCC acted appropriately in amending regulations to eliminate the so-called "fleeting expletives" doctrine.

A broadcaster can be liable under the anti-indecency rules for airing a passing, even unexpected, expletive during live broadcasts. The FCC had fined several stations for such passing expletives, including one against NBC when Bono used "fuck" as an adjective ("this is really, really fucking brilliant") during the live broadcast of the 2003 Golden Globes. The Second Circuit held that the FCC had not provided a "reasoned explanation" for its change in policy as to indecency. The Court did not resolve a First Amendment challenge to the new rules, although it did make a number of "observations" about the First Amendment issues in suggesting that the FCC likely would be unable to justify its policies constitutionally. Indeed, Marty Lederman argues, the Second Circuit's decision may have been a First Amendment decision wrapped in ad law language.

This may prove to be a significant First Amendment case. First, it returns the Court (really for the first time in at least ten years) to the issue of broadcast indecency and the legal rules that allow the FCC to regulate dirty words on broadcast radio and television, but no other medium (this was the topic of my student comment--back in 1995). That regime makes increasingly less sense, given the rise of cable, satellite radio, and the internet, as well (arguably) as the increased prevalence of profanity. Second, the decision may affect my pet issue of sports-fan speech. One justification for restrictions on fan profanity has been that profane signs and cheers may be picked up on the air, perhaps causing broadcasters to choose not to carry one team's games if it does not keep its fans under control. I do not buy the argument. But it carries more weight if fleeting expletives are prohibited and the broadcaster genuinely could be sanctioned for showing the game live.

Stay tuned.