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Moot Court, FCC V. Fox Television Stations Institute of Bill of Rights Law at the William & Mary Law School College of William & Mary Law School William & Mary Law School Scholarship Repository Supreme Court Preview Conferences, Events, and Lectures 2008 Section 1: Moot Court, FCC v. Fox Television Stations Institute of Bill of Rights Law at the William & Mary Law School Repository Citation Institute of Bill of Rights Law at the William & Mary Law School, "Section 1: Moot Court, FCC v. Fox Television Stations" (2008). Supreme Court Preview. 216. https://scholarship.law.wm.edu/preview/216 Copyright c 2008 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/preview I. MOOT COURT ARGUMENT: FCC v. Fox Television Stations In This Section: New Case: 07-582 FCC v. Fox Television Stations Synopsis and Question Presented p. 2 "Supreme Court to Rule on Broadcast Indecency" p. 13 David Savage "Decency Ruling Thwarts FCC on Vulgarities" p. 15 Stephen Labaton "Court Tosses FCC 'Wardrobe Malfunction' Fine" p. 18 Joann Lovigold "Decency over the Airwaves Is a Public Good" p. 20 Joe Pitts "A Federal Appeals Court Strikes down the FCC's 'Fleeting Expletives' Policy on Administrative Law Grounds: Was it Right to Do so?" p. 22 Julie Hilden "FCC Backtracks on 2 Charges of Indecency" p. 27 Jim Puzzanghera "The Price for On-Air Indecency Goes up" p. 29 Frank Ahrens "Bush Taps FCC's Martin as Chairman" p. 31 Bloomberg News "FCC Rules Bono Remark Is Indecent" p. 33 Jube Shiver Jr. "Nasty Language on Live TV Renews Old Debate" p. 35 Frank Ahrens Warning Is Upheld on 'Filthy Words"' p. 3 8 Morton Mintz 1 FCC v. Fox Television Stations 07-582 Ruling Below: Fox Television Stations v. Federal Communications Commission, 489 F.3d 444, 2007 U.S. App. LEXIS 12868 (2007), cert. granted, FCC v. Fox TV Stations, 2008 U.S. LEXIS 2361 (2008). In 2006, the FCC ruled that Fox Television and other networks had violated indecency standards by broadcasting instances of "fleeting expletives." This ruling was in contrast with previous standards that defined indecent material to be that which "dwells on or repeats at length descriptions of sexual or excretory organs or activities." The networks appealed the FCC decision, claiming the change in policy was inconsistent and unconstitutional. The Second Circuit agreed with the networks and vacated the order of the FCC. Question Presented: Whether the court of appeals erred in striking down the Federal Communications Commission's determination that the broadcast of vulgar expletives may violate federal restrictions on the broadcast of "any obscene, indecent, or profane language," 18 U.S.C. 1464; see 47 C.F.R. 73.3999, when the expletives are not repeated. FOX TELEVISION Stations, Inc., CBS Broadcasting, Inc., WLS Television, Inc., KTRK Television, Inc., KMBC Hearst-Argyle Television, Inc., ABC, Inc., Petitioners, V. FEDERAL COMMUNICATIONS COMMISSION, United States of America, Respondents. United States Court of Appeals for the Second Circuit June 4, 2007 POOLER, Circuit Judge: supported by several amici, dispute each of these challenges. We find that the FCC's Fox Television Stations, Inc., along with its new policy regarding "fleeting expletives" affiliates FBC Television Affiliates represents a significant departure from Association (collectively "Fox"), petition for positions previously taken by the agency and review of the November 6, 2006, order of relied on by the broadcast industry. We the Federal Communications Commission further find that the FCC has failed to ("FCC") issuing notices of apparent liability articulate a reasoned basis for this change in against two Fox broadcasts for violating the policy. Accordingly, we hold that the FCC's FCC's indecency and profanity prohibitions. new policy regarding "fleeting expletives" is Fox, along with other broadcast networks arbitrary and capricious under the and numerous amici, raise administrative, Administrative Procedure Act. The petition statutory, and constitutional challenges to for review is therefore granted, the order of the FCC's indecency regime. The FCC, also the FCC is vacated, and the matter is 2 remanded to the Commission for further risk that children may be in the proceedings consistent with this opinion. audience. Obnoxious, gutter Because we vacate the FCC's order on this language describing these matters ground, we do not reach the other challenges has the effect of debasing and to the FCC's indecency regime raised by brutalizing human beings by petitioners, intervenors, and amici. reducing them to their mere bodily functions, and we believe that such BACKGROUND words are indecent within the meaning of the statute and have no The FCC's policing of "indecent" speech place on radio when children are in stems from 18 U.S.C. § 1464, which the audience. provides that "[w]hoever utters any obscene, indecent, or profane language by means of See Citizen's Complaint Against Pacifica radio communication shall be fined under Found. Station WBAI (FM), NY., N.Y., 56 this title or imprisoned not more than two F.C.C.2d 94 at P 11 (1975). years, or both." The FCC's authority to regulate the broadcast medium is expressly limited by Section 326 of the Communications Act, which prohibits the In its brief to the Supreme Court, the FCC FCC from engaging in censorship. See 47 stressed that its ruling [in Pacifica] was a U.S.C. § 326. In 1960, Congress authorized narrow one applying only to the specific the FCC to impose forfeiture penalties for facts of the Carlin monologue. The Court violations of Section 1464. The FCC first took the Commission at its word and exercised its statutory authority to sanction confined its review to the specific question indecent (but non-obscene) speech in 1975, of whether the Commission could find when it found Pacifica Foundation's radio indecent the Carlin monologue as broadcast. broadcast of comedian George Carlin's See FCC v. Pacifica Found., 438 U.S. 726, "Filthy Words" monologue indecent and 732-35 (1978). The Court first rejected subject to forfeiture. True to its title, the Pacifica's statutory argument that "indecent" "Filthy Words" monologue contained in Section 1464 could not be read to cover numerous expletives in the course of a speech that admittedly did not qualify as 12-minute monologue broadcast on the radio obscenity. Finding that obscene, indecent, at 2:00 in the afternoon. In ruling on this and profane have distinct meanings in the complaint, the FCC articulated the following statute, the Court held that the FCC is description of "indecent" content: permitted to sanction speech without showing that it satisfied the elements of [T]he concept of "indecent" is obscenity. The Court [] found that the intimately connected with the FCC could, consistent with the First exposure of children to language Amendment, regulate indecent material like that describes, in terms patently the Carlin monologue.... offensive as measured by contemporary community Justices Powell and Blackmun, who standards for the broadcast concurred in the judgment and supplied two medium, sexual or excretory of the votes necessary for the 5-4 majority, activities and organs, at times of also emphasized in their concurring opinion the day when there is a reasonable that the Court's holding was a narrow one 3 limited to the facts of the Carlin monologue approved by the Court, relied in as broadcast. Foreshadowing the question part on the repetitive occurrence of now before us, they explicitly noted that the "indecent" words in question. "[t]he Commission's holding, and certainly The opinion of the Court the Court's holding today, does not speak to specifically stated that it was not cases involving the isolated use of a ruling that "an occasional expletive potentially offensive word in the course of a ... would justify any sanction .. ." radio broadcast, as distinguished from the Further, Justice Powell's verbal shock treatment administered by concurring opinion emphasized the respondent here." Furthermore, citing the fact that the language there in issue FCC's brief to the Court, Justice Powell had been "repeated over and over stated that he did not foresee an undue as a sort of verbal shock chilling effect on broadcasters by the FCC's treatment." He specifically decision because "the Commission may be distinguished "the verbal shock expected to proceed cautiously, as it has in treatment [in Pacifica]" from "the the past." isolated use of a potentially offensive word in the course of a The FCC took the Pacifica Court's radio broadcast." admonitions seriously in its subsequent decisions. Shortly after the Pacifica ruling, The FCC also specifically held that the the FCC stated the following in an opinion single use of an expletive in a program that rejecting a challenge to a broadcaster's aired at 5:30 p.m. "should not call for us to license renewal on the basis that the act under the holding of Pacifica.". broadcaster had aired indecent programming: It was not until 1987 that the FCC would find another broadcast "indecent" under With regard to "indecent" or Section 1464. See Infinity Broad. Corp., et "profane" utterances, the First al., 3 F.C.C.R. 930 (1987) ("Infinity Amendment and the "no Order"). ... The Infinity Order affirmed on censorship" provision of Section reconsideration three decisions issued 326 of the Communications Act simultaneously by the FCC in April 1987 severely limit any role by the that found certain programs indecent. See Commission and the courts in Pacifica Found., Inc., 2 F.C.C.R. 2698 enforcing the proscription (1987); The Regents of the Univ. of Cal., 2 contained in Section 1464. The F.C.C.R. 2703 (1987); Infinity Broad. Corp., Supreme Court's decision in FCC 2 F.C.C.R. 2705 (1987). The FCC explained v. Pacifica Foundation affords this in the Infinity Order that it would no longer Commission no general take the narrow view that a finding of prerogative to intervene in any case indecency required the use of one of the where words similar or identical to seven "dirty words" used in Carlin's those in Pacifica are broadcast monologue.
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