Supreme Court Says the FCC Can Keep On Fining!

By Jaime Weinman - Tuesday, April 28, 2009 at 12:12 PM - 1 Comment

The U.S. Supreme Court has handed down its ruling in FCC vs. Fox Television Stations, the case that challenged the FCC’s new policy of levying fines even on “fleeting expletives” on television.

By one of those 5-4 decisions that have become common ever since Sam Alito joined the court, the Supreme Court upheld the FCC’s rule, finding that it is “neither arbitrary nor capricious.” The split was the usual one: the majority consisted of the four most conservative justices (Scalia, who wrote the majority opinion, Thomas, Alito, Roberts) plus the moderately conservative Kennedy, while the dissent was filed by Justice Stevens, joined by Ginsburg, Breyer, and Souter.

SCOTUSBlog has more on this case. Basically the court punted on the free-speech issues, with Scalia specifically saying that the decision was not concerned with the First Amendment questions, but merely with whether the FCC is allowed to change its rules. The majority ruled that the FCC provided sufficient explanation of why the rule-change isn’t arbitrary, and everything else is being saved for a future case.

Scalia, as expected, filled his decision with little shots at “the foul-mouthed glitteratae of Hollywood” and the notion that the FCC rule is not arbitrary because it’s aimed to counteract “the pervasiveness of foul language, and the coarsening of public entertainment in other media.” He even wrote that a future First Amendment challenge might succeed if the FCC bans “certain language that is beyond the Commission’s reach under the Constitution,” a clear indication that he doesn’t think any of George Carlin’s Words should be beyond the FCC’s reach. Clarence Thomas, who has more of a libertarian streak than Scalia (and both are more libertarian than George W. Bush’s two appointees, who are straight-up statist in their conservatism), seemed to express more doubts about the idea that the FCC has a right to regulate language.

The case will go back to lower courts, and if the First Amendment challenge ever reaches the SCOTUS, it’s hard to say what might happen: Scalia, Roberts and Alito are probably guaranteed votes for the FCC, but Kennedy and Thomas are less certain.

FCC Follies

By Jaime Weinman - Wednesday, November 5, 2008 at 11:47 AM - 0 Comments

Yesterday the U.S. Supreme Court heard oral arguments  in FCC v. Fox, with Fox challenging the FCC fines of “fleeting expletives” in live broadcasting. This blog has a good summary of the questioning and a link to a PDF of the transcript.

Based on the questioning, it seems very unlikely that the Supreme Court will go anywhere near the First Amendment issue of whether the government has the right to censor TV and radio; it will probably be decided on the procedural issue of whether the FCC’s guidelines are too arbitrary and whether the fines were levied arbitrarily.

At least two of the Justices — Chief Justice Roberts and Antonin Scalia — seemed sympathetic to the idea that the FCC needs to have plenty of leeway to decide when naughty words are deserving of a fine. Roberts in particular seemed to take a shine to the government’s argument that in an era where there are so many naughty words in all the media where the FCC doesn’t apply, there is more of an imperative to keep broadcast TV “clean.” (For the uninitiated, Roberts is what you’d get if you crossed Scalia with Mr. Rogers. That actually sounds somewhat better than it is.)

As Broadcasting and Cable notes, five of the justices who ruled against the FCC in a previous case (dealing with cable and V-chips) are still on the court, though one of those five is Clarence Thomas and you can never tell what he’s going to do: sometimes he’s more of a libertarian type than Scalia, sometimes he isn’t. I’d like to think that the FCC will lose, because while I’m not hard-core against the idea of broadcast standards, the current situation is as bad as can be: the networks have no idea what they’ll be fined for or what they won’t be fined for, so they just censor everything. Having strict but clear censorship guidelines is actually a lot less bad than this situation; when producers know what they can’t do, they can work around it, but this…? Anyway, the court will decide sometime next year, and we’ll see.

You Mean All These Years of Post-Janet Jackson Panic Were For Nothing?

By Jaime Weinman - Monday, July 21, 2008 at 11:31 AM - 0 Comments

An appeals court has voided the FCC fine against Janet Jackson’s “wardrobe malfunction,” ruling that:

The FCC arbitrarily and capriciously departed from its prior policy excepting fleeting broadcast material from the scope of actionable indecency. Moreover, the FCC cannot impose liability on CBS for the acts of Janet Jackson and Justin Timberlake, independent contractors hired for the limited purposes of the Halftime Show, under a proper application of vicarious liability and in light of the First Amendment requirement that the content of speech or expression not be penalized absent a showing of scienter.

In other words, the court (this court, anyway; there will be other appeals, most likely) is saying FCC shouldn’t have been retroactively changing the rules, and it shouldn’t have fined the network for something without being able to demonstrate that the network could have anticipated or controlled it. The court doesn’t actually agree with CBS that they couldn’t block the infamous boob-flash; it just hasn’t been demonstrated one way or another, because the FCC didn’t or couldn’t produce evidence that CBS could have blocked the nipple that changed America:

Because the Commission carries the burden of showing scienter, it should have presented evidence to demonstrate, at a minimum, that CBS acted recklessly and not merely negligently when it failed to implement a video delay mechanism for the Halftime Show broadcast.

It seems like the FCC did a pretty poor job of arguing its case. The whole case hinged on the question of audio delays vs. video delays: the court’s opinion explains that CBS had an audio delay for naughty words, but not a video delay for naughty images. The FCC argued that CBS should have had a video delay as well, and that it should be held liable for not having one. You’d think a better argument on that subject could have stuck, because the court found, in the same opinion, that the FCC’s policy on “fleeting” obscenity applied to images as well as words. (The FCC was arguing otherwise.) If CBS could produce evidence that the FCC’s “fleeting” policy applied across the board, you’d think that the FCC’s lawyers could have come up with evidence that networks are expected to bleep out naughty pictures when they appear. But they either didn’t or couldn’t, and, in this round at least, they lost.

One of the more interesting bits in the opinion, available here as a PDF, comes in a footnote where the judge says that though the FCC says it received “an unprecedented number of complaints” about Janet Jackson’s breast, they don’t have an actual number that they can produce. The judge quotes CBS as follows (note: this is not from the judge, this is from a reply filed by CBS):

“Of the ‘over 542,000 complaints concerning the broadcast’ the FCC claims to have received, over 85 percent are form complaints generated by single-interest groups. Approximately twenty percent of the complaints are duplicates, with some individual complaints appearing in the record up to 37 times.