WTF? FCC v. Fox Television Stations

October 1, 2008 | | Comments Off on WTF? FCC v. Fox Television Stations

On Friday night, a few of the nation’s leading law scholars argued whether fleeting expletives can be publicly broadcast without a fine.

The moot court was scheduled as part of the Institute of Bill of Rights Law annual Supreme Court Preview. This year’s case, FCC v. Fox Television Stations, featured Tom Goldstein, one of the nation’s top Supreme Court litigators, arguing to uphold a new FCC policy that penalized a single expletive uttered by rock star Bono during a broadcast of the January 2003 Golden Globes ceremony.

Goldstein noted the “increase in the coarseness of dialogue” while arguing that the FCC should have the right to change their policy and administer fines based on context. Justice John McGinnis from Northwestern Law School, commented on a perceived increase in vulgar language due to celebrities racing against each other for news coverage. Accordingly, a discussion of FCC v. Pacifica and George Carlin’s “Filthy Words” routine followed.

In one line of questioning, presiding Justice Linda Greenhouse, a renowned journalist, asked Goldstein why some bureaucrat gets to decide ex-post if a network is liable for a huge fine. Goldstein simply replied, “what Fox calls a bureaucrat is really an expert agency.”

Erwin Chemerinsky, a prominent constitutional scholar and dean of UC-Irvine law school, argued to uphold the June 2007 decision of the U.S. Court of Appeals for the Second Circuit. The majority decision at the Court of Appeals did not reach the First Amendment issues, but instead approached the case under the Administrative Procedures Act (APA). It found that the new FCC policy was not “reasoned” (as opposed to “reasonable”) and therefore impermissible as the abrupt change was too “arbitrary and capricious.”

The previous FCC policy considered three factors: whether the expletive was used a single time during a lengthy broadcast, whether it was a live broadcast, and whether the expletive was used as an intensifier rather than in a descriptive sexual or excretory literal sense. After Bono declared his Golden Globe award as “really, really f*cking brilliant”, the FCC received some complaints and the FCC decided to change its policy.

Chemerinsky argued that the FCC’s policy of automatically assuming the F-word is sexual is content-based discrimination inconsistent with the Court’s First Amendment findings in Cohen v. California. When Chemerinsky rhetorically asked the justices to think of three words as powerful as “F*ck the Draft”, Justice Greenhouse replied “Get Rid of the Draft”, effectively demonstrating Chemerinsky’s reasoning.

Spoiler Alert: In the end, the justices remanded the case 6-3 but with a split in reasoning because of the First Amendment concerns. The justices clarified their decision by stating that they voted in the manner they thought was constitutionally consistent, but not in a predictive manner for the Supreme Court’s impending decision this term. The case has been scheduled for argument on November 4, 2008, which is also election day.

Justice William Van Alstyne commented on the paradoxical nature of this issue. On the one hand, he said, the technological changes in broadcast present more alternatives for parent’s who wish to protect their children from harsh lanuage. On the other hand, this is precisely the reason why the FCC should be allowed to preserve one broadcast medium.

The moot court argument was taped by C-SPAN for broadcast purposes. Kevin O’Sullivan, the videographer for the network said that they will probably edit out all the expletives for the tape-delayed broadcast.

“In context, it wouldn’t upset me, but it might concern the general public.”

Originally published in the Marshall-Wythe Press, the law school’s newspaper.

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