On March 17, the Supreme Court agreed to hear FCC v. Fox Television Stations, 07-582, the FCC’s appeal of the Second Circuit’s decision striking down the FCC’s new policy on fleeting expletives, as articulated in its findings against Fox and NBC for the fleeting expletives used by Bono, Cher and Nicole Richie on 2002 and 2003 award shows. Fox Television Inc. v. Federal Communications Commission, 489 F.3d 444 (2nd Cir. 2007). See also, “Next Stop, Supreme Court, in Controversy over the Indecency of Fleeting Expletives,” OnlinePublishingLaw.com Archive, September 2007.

Watchdogs on both sides of the issue, the Center for Creative Voices in Media, in the corner of the First Amendment, and Parent’s Television Counsel, representing the rights of parents to stamp out indecent television, had vastly different reactions the Supreme Court’s move. Andrew Schwartzman, representing the Center for Creative Voices, had predicted the Supreme Court would never take the case. Perhaps wishful thinking on Schwartzman’s part, given that Tim Winters of Parents Television Council was “delighted” that the Supreme Court would step in. See, “Court Will Examine Profanity Rules,” The Associated Press, March 17, 2008.

So, what does it mean that the Supreme Court has decided to wade into the muddy waters of FCC indecency rules for the first time in 30 years? Given the solid conservative bent of the current Court, and a number of other factors, television broadcasters and First Amendment warriors have much to worry about.

The Second Circuit called the FCC’s new policy that utterances of the F-word and the S-word are always indecent, no matter how fleeting, arbitrary and capricious, finding that unless the Commission could come up with a constitutionally well-grounded explanation for the policy, it must fall. The Second Circuit actually allowed the FCC a chance to explain the new policy. Instead, the FCC went straight to the Supreme Court. There’s some hope the Supreme Court could focus on the narrow issue of whether the Commission can justify its new policy. But if that was the Court’s intent, why take the case, when the FCC could have chosen do that under the Second Circuit ruling?

Television insiders also point out that these particular fleeting expletives might not make the best case for freedom of speech arguments. As one pointed out to me recently, Nicole Ritchie’s joke (”You try getting cow shit out of a Prada bag–it’s not so fucking simple.”) had the feel of being scripted, while Bono’s “fucking brilliant” was uttered on a show that didn’t have a five-second delay system in place. Critics will argue that with the use of readily available technology and some care, both expletives might have been prevented from reaching the viewing audience.

Given these facts, this could be the Justices’ chance to look at the FCC’s basic mandate—to regulate broadcast television in the context of today’s wide open communications field and vote it up or down. Should the Supreme Court uphold the FCC’s regulatory role and keep broadcast television a sea of relative G-rated calm, while the internet and cable run wild and free? Or should the FCC stand down, letting DVR technology, parents and self- regulation rule television, whether it is transmitted via airwaves, cable, or increasingly, the internet? One thing is certain, opening the can of worms that is the government’s right to censor anything inevitably leads to two questions: If the FCC can regulate broadcast, why can’t it regulate cable and internet? Or the flip side, if the FCC can’t regulate cable and internet, why should it be able to regulate broadcast? As each of these formerly separate and distinct delivery systems continues to converge, the reasons for treating them differently become less sustainable every day. If this conservative Supreme Court actually decides to tackle the issue of what is and is not acceptable for child viewers of mass media to hear and see, it won’t just be broadcasters who will need to fear the censor’s scythe.

Kathleen Conkey, Of Counsel, Jacobs deBrauwere, and Deborah Principe Lake, Esq., Vice President, Standards & Practices, MTV Networks, will present a 1.5 hour CLE on Indecency Law and Standards for Television, Internet and Wireless, April 16. The program is called “Viewer Discretion Advised” and is sponsored by the TV & Radio Committee of the Entertainment, Arts and Sports Law Section of the New York State Bar Association. For more information or to register, click www.nysba.org/viewerdiscretion.