An appellate court engaged in “inappropriate second-guessing” in reversing an FCC decision that said expletives uttered during awards shows by Cher and Nicole Richie violated broadcast indecency rules, the government is telling the U.S. Supreme Court.
In a petition filed with the high court this week, the Justice Department and the Federal Communications Commission argue that the lower court overstepped its authority in several ways.
First it issued a broad ruling questioning the FCC’s indecency enforcement from narrow facts. Then, they argue, the court failed to give sufficient deference to the FCC in deciding what the indecency policy should be and what a failure to enforce it could be.
The petition is the first filed with the Supreme Court since the high court accepted the indecency case that stems from the FCC’s attempt to act against stations for so-called fleeting indecency—unintended words or images that are aired usually in live broadcasts.
Traditionally the FCC has overlooked fleeting profanities. The high court case stems from the FCC’s attempt to reverse course. In the case, the FCC said Fox TV stations’ airing of the actresses’ profane comments in successive Billboard Music Awards shows in 2002 and 2003 amounted to “broadcast indecency.”
The FCC didn’t fine any Fox stations, but indicated it was sending a message and would regard future violations seriously. Fox challenged the action.
The Second Circuit Court of Appeals, on a 2-to-1 ruling, agreed with Fox. The court overturned the FCC’s action, saying the agency hadn’t justified its switch or shown adequate evidence that the action was needed to protect kids.
In the latest brief, the government argues the court went too far in questioning the FCC’s reasoning for acting and didn’t go far enough in deciding on the constitutionality of the FCC’s indecency authority.
“The court of appeals had no basis to override the commission’s judgment on the risks that isolated expletives pose to children during the broadcast times at issues,” the government argued. “The court has no basis for demanding that the commission demonstrate that broadcasters would flood the airwaves with expletives in the absence of a change in policy.”
The government asks the high court to reverse the court ruling and send the case back for questions about the constitutionality to be argued.