Below is the second of four short previews of important cases set to be argued before the Supreme Court over the next two-week period. The first preview, on Wyeth v. Levine, is available here.

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FCC v. Fox Television Stations, Inc. (Tuesday, Nov. 4)

Written by Judith E. Schaeffer, Vice President of Constitutional Accountability Center

On Election Day, while many Americans who are standing in long lines to vote may well be tempted to utter an expletive or two in frustration over the wait, the Supreme Court will be considering the utterance of expletives on television.

At issue in FCC v. Fox Television Stations, Inc. is whether the Federal Communications Commission (FCC) can punish as “indecent” a single utterance of a non-obscene vulgarity on a broadcast television show, speech that is protected by the First Amendment (and heard regularly on cable television, as viewers of such popular shows as The Sopranos are well aware).

The FCC’s decision to regulate so-called “fleeting expletives” is of recent vintage. For more than two decades following the Supreme Court’s 1978 sharply divided 5-4 decision in FCC v. Pacifica Foundation, in which the Court held that the FCC was permitted under the Constitution to regulate “indecent” speech on broadcast media, the FCC did not proceed against “indecent” speech in a particular broadcast unless the use of the language was repeated. (The Pacifica case concerned a radio broadcast of George Carlin’s famous 12-minute “Filthy Words” monologue.)

Several years ago, the FCC abruptly changed course and jettisoned its prior decisions considering the “fleeting” use of an expletive not to be indecent. What prompted such a change? Bono! Yes, the FCC’s move came after singer Bono exclaimed “this is really, really, fucking brilliant” when he accepted a Golden Globe Award on a live NBC broadcast. Apparently, the FCC considered Bono’s spontaneous utterance of joy to signal the fall of western civilization if heard over the airwaves. Subsequently, the FCC ruled that the utterance of a single expletive in other broadcasts was “indecent,” and levied fines against the networks for those broadcasts that had occurred after its action in the Bono matter. One of the shows that drew the FCC’s wrath was the live broadcast of the Billboard Music Awards, during which Cher, accepting an award, responded to critics who had said her career was over by stating, “People have been telling me I’m on the way out every year, right? So fuck ‘em.”

The networks sued, asserting that the FCC’s abrupt policy change violated federal statutory law and also that the “fleeting expletives” rule violated the Free Speech Clause. The United States Court of Appeals for the Second Circuit ruled in favor of the networks, 2-1, holding that the FCC had violated federal administrative law in failing to provide a reasonable justification for its sudden policy change. The court sent the case back to the FCC to give it an opportunity to provide such justification, but also suggested that the agency would not be able to satisfy the First Amendment concerns raised by the networks. Among other things, the court noted that the FCC had been inconsistent in its application of its “indecency” test, holding that the repeated utterances of “fuck” and “shit” in the movie Saving Private Ryan were not indecent, making it difficult for broadcasters to know what was impermissible and also indicating that the FCC might be making judgments based on its subjective view of the merits of particular speech.

Rather than attempt to justify its ban on “fleeting expletives” on remand, the FCC asked the Supreme Court to hear the case and the Court agreed to do so.

The ACLU has filed an amicus brief in support of the networks on behalf of a number of creative arts, media and free speech organizations, strongly criticizing the FCC’s efforts to regulate “indecency” on broadcast television as arbitrary and capricious. The brief argues not only that the “fleeing indecency” rule cannot withstand First Amendment scrutiny, but also that the FCC’s entire “indecency” regime is incompatible with the core values of the Amendment. Representatives of the amici have explained that the FCC’s “indecency “ regime among other things has had a chilling effect on artists and broadcasters, resulting in the self-censorship of artistic expression and protected speech.

For its part, the FCC does not want the Court to go anywhere near the First Amendment. Its brief defends its rule change on statutory grounds, and urges the Court at this juncture not to consider the First Amendment claims raised by the networks and their amici.

Will the Justices take a pass, at least for now, on the important free speech issues raised by this case? We may have a better sense after Tuesday’s oral argument.