FCC v. Fox Television Stations

For the first time in 30 years, the Supreme Court will revisit the issue of broadcast indecency in a case that turns on the Federal Communications Commission’s ban on the use of fleeting expletives in live television broadcasts.

The controversy arose in March 2003 when U2 frontman Bono uttered the f-word during a broadcast of the Golden Globe Awards. Immediately following the incident, the FCC decided not to fine NBC or its broadcast affiliates, which aired the show. The agency’s enforcement bureau held that “Bono’s comment was not indecent or obscene because he did not use the word to describe a sexual act…The performer used the word ... as an adjective or expletive to emphasize an exclamation.”

Following pressure from Congress, however, the FCC reversed its initial decision a year later, holding that Bono’s words were actually indecent because such language always has some sexual or excretory meaning. The commission decided not to fine the network but warned that broadcasters should now be on notice that any broadcast of the “f-word” could subject them to fines.

The FCC later applied its Golden Globes order to Fox’s broadcast of the 2002 and 2003 Billboard Music Awards. In 2002, Cher used the f-word in accepting an award and the following year, Nicole Richie used the “s-word” and “f-word” while presenting.

Although Fox was not fined for the broadcasts, the network filed suit, arguing that the FCC’s new policy was unclear and violated free speech rights.

In June 2007, a divided three-judge panel on the 2nd U.S. Circuit Court of Appeals in New York vacated the policy, calling it “arbitrary and capricious under the Administrative Procedure Act.”

“We are sympathetic to the Networks’ contention that the FCC’s indecency test is undefined, indiscernible, inconsistent, and consequently, unconstitutionally vague,” Judge Rosemary Pooler wrote for the 2-1 court.

In asking the high court to take the case, Solicitor General Paul Clement argued that the lower court’s decision conflicted with the 1978 case, FCC v. Pacifica Foundation, in which the Supreme Court upheld the FCC’s rules against the broadcast of comedian George Carlin’s “Filthy Words” monologue on the radio.

“The court of appeals appears to have put the FCC to a choice between allowing one free use of any expletive no matter how graphic or gratuitous, or else adopting a (likely unconstitutional) across-the-board prohibition against expletives,” Clement wrote.

Meanwhile, the networks urged the Supreme Court to let the 2nd Circuit ruling stand, contending that it did not conflict with Pacifica because this case involves fleeting expletives rather than an extensive monologue.

The justices will hear oral arguments in the case this fall.

Question presented:

Whether the court of appeals erred in striking down the Federal Communications Commission’s determination that the broadcast of vulgar expletives may violate
federal restrictions on the broadcast of “any obscene, indecent, or profane language,” 18 U.S.C. 1464; see 47 C.F.R. 73.3999, when the expletives are not repeated.