It’s hard to say which of the 11 cases the U.S. Supreme Court agreed to review Monday will turn out to be the most important, but picking the one that’s the most fun is easy. In Federal Communications Commission v. Fox, we should get to hear a pair of former U.S. Solicitors General talking to the Justices about naked buttocks on NYPD Blue and U2’s Bono calling his Golden Globe award “really, really fucking brilliant” on Fox.
And, oh yeah, the First and Fifth Amendments of the Constitution. The Court granted the FCC’s petition to review two rulings by the U.S. Court of Appeals for the Second Circuit that held the commission’s indecency policy is unconstitutionally vague. The Justices reframed the issue slightly, so the case at the Supreme Court will answer the question of whether the FCC indecency policy violates the free speech and due process provisions of the Constitution. (Here are the Second Circuit opinions and the Supreme Court briefing, courtesy of Scotusblog.)
One of the Second Circuit rulings involved a case that’s already been to the high court once. The “fleeting expletives” case, as it’s known, addressed the FCC’s fines for Fox’s airing of Bono’s Golden Globes acceptance speech, well as its airing of a different awards show comment by Cher. (Cher said “Fuck ‘em” about critics who said her career wouldn’t last.) There was high anticipation in 2008, when Fox’s lawyer, former solicitor general Carter Phillips of Sidley Austin, appeared before the Supreme Court to argue against the FCC’s ban on fleeting expletives: Would Phillips actually utter swear words? (Alas, he didn’t.)
The Court ruled in 2009 that the FCC can fine networks for fleeting expletives, but didn’t decide the bigger question of whether the commission’s indecency policy is unconstitutional. On remand, the Second Circuit said the policy violates the networks’ First Amendment rights.
In a companion case, ABC challenged $1.24 million fine the FCC levied for its broadcast of a nude image of the actress Charlotte Ross in a 2003 episode of NYPD Blue. (Ross, who played Detective Connie McDowell, was seen dropping a towel as she prepared to get into the shower; she was depicted only from the rear and the side, for a total of seven seconds.) ABC’s lead counsel, former solicitor general Seth Waxman of Wilmer Cutler Pickering Hale and Dorr, argued, among other things, that the FCC policy amounts to a violation of the networks’ due process rights, since cable networks down the television dial aren’t subject to the same restrictions.
A different three-judge Second Circuit panel overturned the ABC fine, finding the FCC’s “fleeting images” policy is as unconstitutional as its fleeting expletives policy. The appellate court barred the commission from enforcing its policy.
The FCC, represented by the Solicitor General’s office, asked the Supreme Court to undo both Second Circuit holdings. The Court’s decision to grant the FCC’s petition should finally settle the issue of what restrictions the commission can place on network broadcasts. (It’s worth pointing, as ABC does in its brief opposing the FCC’s petition to the Supreme Court, that the suspension of the FCC’s enforcement hasn’t resulted in a flood of nudie shots and curse words on network television, where broadcasters have to worry about offending their audience.)
ABC counsel Waxman, whose firm coined the phrase “full dorsal nudity” to describe the image of the NYPD Blue actress, told OTC Monday that ABC is confident the Second Circuit correctly held that the FCC’s policy doesn’t pass Constitutional muster. “We look forward to demonstrating the unconstitutionality of the enforcement regime in the Supreme Court,” Waxman said.
OTC prodded Phillips about whether, this time around, he’d let slip the f-word, at least fleetingly. He said he won’t unless he gets word from the Court that it’s okay. “If they’re up for it, I’m up for it,” he said. Speaking more seriously, Phillips said he’s glad the Justices are going to consider the broad Constitutional issues. “The FCC policy is based on the way the broadcast industry operated in the 1970s,” he said. “This should bring us closer to the way the industry operates now.”
It’s likely that Waxman and Phillips will split the networks’ time at oral argument before the Court. (Justice Sonia Sotomayor, who was on the Second Circuit when the FCC cases were heard, is recused.) NBC and CBS are also parties to the Fox case; they are represented by Gibson, Dunn & Crutcher and Davis Wright Tremaine, respectively.
The Justice Department declined comment. (Reporting by Alison Frankel)