Obama administration asks Supreme Court to uphold FCC’s indecency policy

The Obama administration is asking the Supreme Court to overturn a court ruling that greatly diminished the Federal Communications Commission’s (FCC) ability to police the airwaves for indecency.

Acting Solicitor General Neal Katyal filed a certiorari petition ahead of Thursday’s deadline after previously filing for two extensions. The administration is asking the Supreme Court to overturn the 2nd Circuit Court of Appeals decision that struck
down the FCC’s indecency policy last July.

{mosads}The court ruled that the FCC’s policy against fleeting expletives on live television, instituted in 2004 after U2 frontman Bono used an expletive during the 2003 Golden Globes, was unconstitutionally vague and resulted in self-censorship by broadcasters wary of facing record fines.

The FCC subsequently acknowledged the court’s ruling would likely prevent the commission from enforcing its indecency policy even in cases of scripted rather than fleeting profanity or nudity.

That prediction came to fruition in January when the same court tossed the commission’s record $1.4 million fine leveled against 52 ABC affiliates for airing a 2003 episode of “NYPD Blue” that contained a scene featuring actress Charlotte Ross nude.

Katyal enclosed a DVD of the episode with the petition.

“The court’s decisions … preclude the
FCC from carrying out its statutory responsibility to
ensure that broadcasters honor their longstanding public interest obligation not to air indecent material,” the petition states.

The administration argues that in order to meet the court’s concerns about “vagueness,” the FCC would have to revert to its previous enforcement regime based around a list of words or images banned from primetime TV.

That practice stemmed from the 1978 Supreme Court case FCC v. Pacifica Foundation concerning a broadcast of comedian George Carlin’s famous “Seven Dirty Words” routine, which became the backbone of the FCC’s enforcement policy for the next decade.

“Such a policy would be easily circumvented, however,
and it would raise serious First Amendment problems of
its own,” the Justice Department argues in the petition.

“If left to stand, the court of appeals’ decisions
would leave the FCC with no effective means to implement its longstanding statutory authority over indecent
broadcasting,” the DOJ said.

Parents Television Council (PTC) President Tim Winter issued a statement praising the administration for filing the petition, citing a poll commissioned by his organization showing support for the policy. The PTC has been the loudest supporter of the FCC’s indecency policy.

“Today’s appeal is a step in the right direction, but we urge the U.S. Supreme Court to consider the children and families who will be impacted if the broadcast decency law is dismantled,” Winter said.

“The high court must not give the broadcast networks the opportunity to use narrow, misguided circuit court rulings to nullify the will of the American people, the intent of the U.S. Congress and several decades of Supreme Court precedent,” he said.