Setting up a showdown at the Supreme Court that could topple the 32-year-old “seven dirty words” standard for broadcast indecency, a federal appeals court decided Tuesday that the First Amendment prohibited the Federal Communications Commission from fining television stations for “fleeting expletives” blurted out on their broadcasts.
The 3-0 ruling in Fox Television Stations, Inc. v. FCC is certain to be appealed to the Supreme Court, which has already ruled in the FCC’s favor once at an earlier stage of the case.
The Fox case has special salience for college broadcasters. As the SPLC’s Rob Arcamona described in a 2008 article, college radio’s heavy dependence on live news and sporting events puts those stations at constant risk of a stray “F-bomb” that could explode into a lethal financial penalty.
The Fox case involves a 2006 FCC order in which the Commission tried to explain its rationale for retreating from an established policy of not penalizing isolated outbursts of profanity. The networks claimed that the Commission’s new standards were so unpredictable that there was no way of anticipating whether a swear-word might trigger an FCC penalty or skate by.
In an opinion authored by Judge Rosemary Pooler, a Second Circuit panel unanimously agreed with the broadcasters. The FCC’s policy is so random — “bullshit” prompted a fine, but “dickhead” and “kiss my ass” did not — that it flunks the basic First Amendment prerequisite that any regulation of the content of speech give the speaker fair warning of when he is at risk of going too far:
[W]hen Judge Leval asked during oral argument if a program about the dangers of pre-marital sex designed for teenagers would be permitted, the most that the FCC’s lawyer could say was ‘I suspect it would.’ With millions of dollars and core First Amendment values at stake, ‘I suspect’ is simply not good enough.
Tuesday’s ruling acknowledged — but deeply questioned — the binding legal precedent of the Supreme Court’s 1978 FCC v. Pacifica decision. In that case, the Court found, in the context of a profane (and hilarious) George Carlin monologue broadcast by a New York radio station, that the FCC could constitutionally regulate “indecent” speech on the public airwaves, even though the government normally cannot restrict speech unless it meets the far more exacting test of “obscenity.”
The circuit judges engraved an invitation for the Supreme Court to overrule Pacifica, pointing out that its foundational doctrine — that broadcast licenses are a scarce public resource justifying higher involvement by regulators — has been undercut by the proliferation of cable- and web-based alternative conduits.
Fox Television has made one trip to the Supreme Court already. In that earlier visit, the Court avoided the difficult First Amendment question and decided the case in the FCC’s favor on a procedural point, sending the constitutional issue back to the Second Circuit for resolution.
There will be no evading the core First Amendment issue this time, and a newly constituted Court — without the participation of retiring Justice Stevens, the author and decisive fifth voter in Pacifica — may have its free-speech convictions immediately tested in the coming fall term.