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The U.S. Justice Department on Thursday decided to appeal a case to the Supreme Court over the Federal Communications Commission‘s ability to fine television broadcasters for indecency.
In a pair of decisions last year, the Second Circuit Court of Appeals expressed doubts about whether the FCC has clear standards and constitutional authority when it comes to policing indecency. Justices at the appeals circuit tossed a $1.4 million FCC fine against ABC for airing an episode that showed an actress’ rear end and also rejected fines against broadcasters for naughty language at live award shows.
Neal Katyal, the U.S. Solicitor General, urged the Supreme Court on Thursday to review both cases since these appellate decisions “preclude the commission from effectively implementing statutory restrictions on broadcast indecency that the agency has enforced since its creation in 1934.”
If the U.S. Supreme Court accepts the case for review, it would lead to a First Amendment showdown with Hollywood, which has argued that vague indecency standards lead to a “chilling effect” on the exercise of free speech.
For the past years, many conservative groups have been urging the Justice Department to make this appeal, and it comes as a surprise that the Obama administration has decided to go forward.
The last time the Supreme Court put the FCC’s indecency policies up for review was just two years ago, when in a 5-4 decision, it ruled the FCC hadn’t overstepped its bounds in policing the live broadcast of unexpected curse words. Justice Antonin Scalia, in a majority opinion, ruled then that the FCC policy was neither “arbitrary nor capricious,” but Justice Anthony Kennedy — who would likely again be the swing vote — hinted he was vary concerned about the constitutionality of the FCC’s reach and would soon consider it again.
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