Student expression advocates have their eyes on the Supreme Court this week, with two major First Amendment issues on the agenda.
The Court will hear arguments Tuesday in what could be a landmark case in the law of broadcasting. The case, FCC v. Fox Television Stations, will address how the Federal Communications Commission regulates “indecent” material on the airwaves. It stems from two unplanned F-bombs during the 2002 and 2003 Billboard Music Awards, which aired on Fox. The FCC fined several local Fox affiliates for airing the profanity outside of the “safe harbor” period of 10 p.m. – 6 a.m., when the commission allows indecent material. The stations challenged the fines, arguing that the FCC acted arbitrarily when it began penalizing so-called “fleeting expletives,” or one-time uses of profanity.
Since the Supreme Court’s 1974 decision in FCC v. Pacifica Foundation, the government has been allowed to regulate “indecent” broadcasts without violating the First Amendment — even though it cannot do so in other media like print and the Internet. Commonly known as the “seven dirty words” case, the majority in Pacifica reasoned that broadcasting deserves less First Amendment protection because it is “pervasive” and easily available to children.
The FCC had not historically fined broadcasters for one-time uses of profanity, but in 2004 it changed its policy and began enforcing against fleeting expletives — including those from the Billboard Music Awards. Fox challenges the move in court, arguing that the change in policy was “arbitrary and capricious” and violated federal law. The Supreme Court in 2009 sided with the FCC, but declined to address the underlying free speech issue. However, a lower appeals court held in 2010 that banning fleeting expletives does violate the First Amendment.
The case is now back before the Supreme Court for a decisive answer, joined by another appeal involving nudity on an episode of ABC’s “NYPD Blue.” What makes it even more significant, however, is the prospect that the justices could overturn Pacifica and essentially end the FCC’s ability to control indecency on over-the-air television and radio. That’s exactly what some are urging the Court to do, reasoning that more than 35 years later, broadcasting is no longer the uniquely pervasive or accessible medium it once was. Regardless of whether the Court issues a sweeping ruling or a narrower one limited to isolated and unanticipated curse-words, it will have major implications for college broadcasters.
The second major event will come Friday, when the justices decide whether to rule on the legal status of students’ off-campus speech. The Court is considering petitions from three cases in which students were punished for what they wrote online, away from school and on their own time. In the first two cases, J.S. v. Blue Mountain School District and Layshock v. Hermitage School District, two Pennsylvania students were suspended after they created fake MySpace profiles ridiculing their school principals. The 3rd U.S. Circuit Court of Appeals ruled in June that the pages were protected by the First Amendment, but did not announce a standard for when, if at all, students can be disciplined for what they say online.
The third case, Kowalski v. Berkeley County Schools, involves a West Virginia student who created a MySpace group called “S.A.S.H.” Kara Kowalski claims the acronym stands for Students Against Sluts Herpes, but others contend it stands for “Students Against Shay’s Herpes” — a reference to another student at the school. The group contained degrading comments about Shay, posted by other students invited to join the group. The 4th U.S. Circuit Court of Appeals ruled in July that school officials were justified in suspending Kowalski. The court also explicitly held that students’ off-campus speech on the Web may be disciplined under the same legal standards as speech inside of the school building during school hours — meaning that speech is punishable if it provokes a “substantial disruption.”
If the high court grants review in any or all of these cases, it would set up the highest stakes for student expression rights in more than 20 years.
If the justices follow their usual practice, they will make an announcement on hearing the off-campus speech cases at 10 a.m. on Tuesday, Jan. 17 (Monday is a holiday). A ruling in the Fox case is expected sometime before July.