Editorial: The Supremes, Fleetingly Indecent

Recent Court Decision May Be Just a Warmup
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On April 28, the Supreme Court issued its first decision in more than 30 years involving the FCC's regulation of broadcast indecency. Unfortunately, that decision — FCC v. Fox Television Stations, Inc., No. 07-582 — did virtually nothing to clear up the muddled state of the law. At best, it set the stage for the next act, which we might see in the next couple of years. But that act could be a doozy.

Much of the press coverage of the court's decision has indicated that the decision "upholds" the Federal Communication Commission's regulation of indecency. Technically, that's not exactly what the court did.

Fox had aired two programs (in 2002 and 2003), one in which Cher had said "f--k 'em" and the other in which Nicole Richie had observed that it's not "so f--king simple" to remove "cowsh-t" from a Prada purse.

With its knickers all in a bunch, the FCC concluded that Fox had violated the commission's ban on broadcast indecency.

Fox appealed, arguing that the indecency ban is unconstitutional. But Fox also pointed out that the two instances of alleged indecency were "fleeting expletives," essentially one-time-only miscues of the kind that the FCC had, since at least 1978, expressly declined to penalize.

Ordinarily, agencies like the FCC aren't permitted to abandon established policies without an adequate explanation for the change. Fox argued that, as a matter of administrative law, the commission fell short of that obligation.

The federal appeals court in New York that first heard the appeal agreed with both of Fox's arguments. But for a number of reasons, courts choose not to reach constitutional questions if they can be avoided. Here, the more mundane issue of "adequate explanation" allowed the appeals court to hold in Fox's favor without relying on the constitutional arguments.

When the case arrived at the Supreme Court, then, the sole question was whether or not the FCC had adequately explained its abandonment of its earlier "fleeting expletives" policy. And on that point, the court reversed the appeals court. In the view of the Supremes, the FCC had done all it needed to do.

So while the Supreme Court technically did uphold the FCC's indecency ruling in this case, the ruling focused exclusively on the administrative law question of the adequacy of the FCC's explanation for its change of policy. The fact that that policy happened, in this case, to involve indecency was merely incidental.

But now that the administrative law question has been cleared away, the constitutional question looms large. The case goes back to the appeals court in New York for further consideration. Since that court already has indicated that it agrees with Fox that the FCC's indecency policy is unconstitutional, on remand it is likely that we will get a ruling from the appeals court on that constitutional issue. And that, in turn, would tee up the case for another trip to the Supremes — but this time focused on constitutional, rather than administrative, law.

Getting to the high court on the constitutional issue should provide some fireworks. At least one member, Justice Thomas, who voted for the FCC in this most recent go-round made clear that he doubts that the FCC's overall program regulation scheme can pass constitutional muster. At least one or two other members of the majority might also be leaning in that direction.

So it's possible — no guarantees, of course — that the next time this case gets to the Supreme Court, the result could be the deep-sixing of all broadcast indecency regulation. And if Thomas' view prevails, it could also mean the deep-sixing of virtually all regulation of broadcast content.

It's premature at this point to expect that the stars will in fact align that way but, from what's happened so far, they certainly could. Stay tuned.

— Radio World

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