Court supports FCC's expletives policy

Supreme Court doesn't rule on constitutionality

NEW YORK -- In a setback for the TV industry, the Supreme Court on Tuesday backed government regulation and punishment of the use of curse words during live broadcasts -- even in the case of single offending words.

However, in the 5-4 vote, it didn't decide whether the FCC's controversial "fleeting expletives" policy is consistent with First Amendment free speech rights, instead suggesting that a federal appeals court should rule on that issue.

The Supreme Court's call throws out a ruling by the 2nd U.S. Circuit Court of Appeals in New York in favor of a Fox Television-led challenge. The lower court had asked for a more detailed reasoning of the tougher stance on indecency.

"While we would have preferred a victory on Administrative Procedure Act grounds, more important to Fox is the fundamental constitutional issues at the heart of this case," Fox said in a statement Tuesday. "Fox is looking forward to the 2nd Circuit's consideration of the very important issues at stake in this case, and (we) are optimistic that we will ultimately prevail when the First Amendment issues are fully aired before the courts."

Lobby groups on both sides of the issue quickly commented on the decision Tuesday.

The Supreme Court's failure to address the underlying constitutional issues "will leave the First Amendment freedoms of both media creators and consumers in this country uncertain until another case winds its way up to the court, which could take years," said Adam Thierer, senior fellow at the Progress & Freedom Foundation, a market-oriented think tank that studies the digital revolution and its public policy implications.

"What's the point of continuing to apply a censorship regime to one of the oldest mediums -- broadcast TV and radio -- when kids are flocking to unregulated mediums in large numbers? At this point, we're doing little more than protecting adults from themselves and destroying over-the-air broadcasting in the process."

Parents Television Council president Tim Winter, meanwhile, lauded the decision. "Today's ruling by the Supreme Court is an incredible victory for families," he said. "The court has affirmed that the broadcast airwaves do indeed belong to the public, and not to the broadcasters who are granted a license to use the public airwaves for free."

Common Sense Media CEO James Steyer echoed the sentiment, calling the decision "crucial and wise." But he also highlighted that key issues remain unresolved. "The six separate opinions from the Court in FCC v. Fox also show that the legal world is still divided on the best ways to balance the interests of families with the First Amendment rights of broadcasters, so the debate on these issues will clearly continue," he said.

Bryan Cave lawyer Charles Zielinski, a former appellate lawyer at the FCC, said the Supreme Court's decision "leaves broadcasters in a quandary." He and others predicted they will continue to "bleep" out "fleeting expletives" or run the risk of FCC sanctions. "While the separate opinions in the case suggest the policy may well be unconstitutional, those suggestions provide little solace to broadcasters immediately concerned about complying with the policy the Court has upheld in their next live broadcast," he argued.

Erik Huey, First Amendment expert and partner at law firm Kilpatrick Stockton, said industry folks will be disappointed that the question of the constitutionality of the FCC practice remains undecided." The judges kicked that can down the road," he said, adding that many had hoped one "fleeting expletive" could be considered acceptable.

He said while broadcasters are affected, performers are not. "This decision doesn't change anything for them," Huey said. "Individuals have never been fined and will not be fined now."
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