A Bush push on indecency
Administration backs FCC in court filing
In a brief filed Monday night with the Supreme Court, which will take up the contentious issue of broadcast indecency for the first time in 30 years during its 2008-09 session, U.S. Solicitor General Paul D. Clement argued that the 2nd Circuit Court of Appeals erred last year in ruling that the FCC had failed to adequately justify its new policy. The brief urged the high court to remand the case back to the 2nd Circuit.
Clement also cautioned the Supreme Court against taking up the constitutional questions that the case implicitly raises.
In March 2006, the FCC issued an omnibus order abandoning its previous practice of not fining broadcasters for one-time expletives uttered in live settings. The order cited Fox for profanities on two live broadcasts and ABC and CBS for a single broadcast each.
But the commission did not issue the usual accompanying fines, acknowledging that the policy was new and declaring that it's action in these cases would serve as future guidelines.
Fox, CBS and ABC took the cases to the 2nd Circuit, arguing the new policy underlying them was unjustified, arbitrary and capricious. Before the appeals court heard the case, the FCC withdrew the citations against CBS and ABC but not against Fox.
Last June, the 2nd Circuit ruled in Fox's favor, barring the FCC from enacting the new policy until it offered more justification for the change. But the FCC turned to the Supreme Court, which earlier this year agreed to take the case in its next session starting this fall.
In the brief for the Bush administration, Clement argued that the FCC had included in the omnibus order a reasoned explanation that "fully satisfied" all federal requirements regarding changes of rules or policy.
Furthermore, the brief stated, "Not only do (the appellate court's) criticisms rest on an inappropriate second-guessing of policy judgments committed to the agency by Congress, they also have less to do with the commission's revised policy on isolated expletives than they do with the enterprise of broadcast-indecency enforcement in general."
"The court of appeals also erred in dismissing the commission's determination that the F-word has a sexual connotation even when used in a nonliteral sense as an intensifier or as part of an insult," the brief continued. "The commission, after having studied the issue, is in a better position to evaluate the connotations of language."
Since the 2nd Circuit had decided the case effectively on procedural grounds, the judges were not required to address constitutional questions that the fleeting expletive policy raises. However, in an extraordinary move, the judges appended almost 10 full pages of opinion stating that they seriously doubted the FCC could adequately justify the new policy because constitutional obstacles would be significant.
In his brief, Clement urged the high court to remand the case back to the 2nd Circuit so that its judges could fully address any constitutional issues in a new proceeding. "And there is no reason for this court to depart from its customary practice and reach out to decide constitutional questions not passed on" by the actual 2nd Circuit ruling, the brief said.
Fox has 30 days in which to respond with a brief, but a network source said its attorneys will likely seek an extension.
The Supreme Court has yet to set a date for hearing the case.
