The Supreme Court has agreed to hear the FCC’s defense of its “Omnibus” Indecency order, which involved the FCC’s decision to punish “fleeting” expletives. The case, FCC v. Fox Television Stations, marks the first real Supreme Court review of the FCC’s indecency rules since the famous FCC v. Pacifica case considered George Carlin’s “seven dirty words.” The outcome of the case could entirely overturn the FCC’s authority to regulate indecency content or further entrench that authority.
At issue in the case is the FCC’s decision in its Omnibus Indecency order to sanction Fox Television Stations for “fleeting” or “isolated” uses of indecent words, reversing decades of prior policy on “fleeting expletives”. The Supreme Court’s decision to hear the case is somewhat surprising, given the fact that the Court of Appeals for the Second Circuit (which issued the decision under appeal) specifically limited the basis of its decision to a point of administrative procedure, rather than direct First Amendment grounds. Moreover, the Court of Appeals for the Third Circuit is still considering the appeal of the Super Bowl/Janet Jackson case. Traditionally, the Supreme Court prefers cases that involve issues of
Constitutional significance that different appeals courts have decided in different ways. In appealing the case to the Supreme Court, however, the FCC argued, among other things, that the Second Circuit’s decision was really an attack on the entire basis of the FCC’s indecency regulation and, by extension, an attack on the Supreme Court’s decision in FCC v. Pacifica. If the Supreme Court follows that argument, we could see a reconsideration of FCC’s authority to regulate indecent broadcast content. On the other hand, the Court may simply weigh in on the procedural point, setting up another round of reconsiderations and appeals that could take years to resolve.
Legal pundits will spend the next few months debating on the Supreme Court’s motives for taking the case and predicting the ultimate outcome. For now, we will limit ourselves to noting that the FCC has a backlog of dozens, perhaps hundreds, of indecency cases that have been held in limbo while the FCC has tried to get more guidance from the courts and Congress. While today’s announcement is a significant event, given that the Supreme Court won’t actually hear arguments until fall of this year, those cases may expect to stay in limbo until at least 2009.