DOJ Plans Appeal of Second Circuit Ruling on FCC Indecency Rules

Last week, the Department of Justice announced that it plans an appeal of the Second Circuit's June 2007 ruling in Fox v. FCC, which concluded that the agency failed to justify its 2003 changes in interpreting what constitutes broadcast indecency. I wrote about how this policy affects sports broadcasts and I generally found that the court's opinion was no surprise.

The new policy, known as the "fleeting expletives" rule, constitutes a major change in indecency enforcement because it permits the non-contextual use of four-letter words to be actionnable and can subject broadcasters to stiff penalties, as mandated by Congress. The appeal comes at the same week when the U.S. Court of Appeals for the Third Circuit heard arguments in a challenge by CBS against the stiff fines imposed after the infamous Janet Jackson "wardrobe malfunction" during the 2004 Super Bowl. [For a summary of those arguments, which focus on CBS's responsibility for the acts of independent contractors, click here] The Supreme Court appeal also comes when both houses of Congress are debating bills to reimpose that policy.

I think that DOJ figures that the FCC cannot justify these rules to the satisfaction of a reasonable federal court and whatever they do will be challenged on First Amendment grounds before the ink is dry on the parchment. Given the ideological bend of the Bush Administration and its FCC, it is hardly surprising. The question is whether the court will grant cert. I have a feeling it will, because it has been almost three decades since the court visited the issue in FCC v. Pacifica Foundation , 431 U.S. 494 and so much has changed in the communications law landscape.

If the high court accepts the case (possibly in conjunction with an appeal in the CBS case), I have a good feeling that the court will strike down the "fleeting expletive" standard. The present court is not unsympathetic to free speech protections. Conservatives take a libertarian view and are uncomfortable with governmental policy that overly restricts it. Also, the time may be ripe for a reexamination of the first amendment standards as applicable to broadcasters, which have traditionally been more restrictive due to the "scarcity" and "pervasiveness" of the radio and over the air television delivery systems. For all broadcasters, including sports broadcasters, that day cannot come too soon.

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