Last week the U.S. Supreme Court ruled in the Federal Communications Commission’s “fleeting expletives” case.
Here are the facts: During the 2002 Billboard Music Awards, broadcast live by Fox and its affiliates, Cher said, “I’ve also had critics for the last 40 years saying that I was on my way out every year. Right. So f*** ‘em.” During the live broadcast a year later of those same awards, again on Fox, Nicole Richie, then appearing on “The Simple Life,” said, “Why do they even call it ‘The Simple Life’? Have you ever tried to get cow s*** out of a Prada purse? It’s not so f***ing simple.”
The FCC said the Fox stations that aired the show were liable for broadcasting these fleeting expletives because they constituted indecent speech. It also said the stations could be fined, although in this instance they were not.
The Fox TV stations appealed the ruling, claiming that in the past the FCC did not punish stations if someone let loose with a fleeting expletive during a live show, and that the FCC had no good reason for changing its policy. The 2nd Circuit Court of Appeals agreed with Fox.
The case then went to the Supreme Court. In a 5-4 decision written by Antonin Scalia, the court ruled the FCC could change its policy.
What the court did not address was the free speech/First Amendment issue. That is, can the FCC legitimately block this speech? Indeed, Justice Scalia, writing for the majority, wrote, “It is conceivable that the commission’s orders may cause some broadcasters to avoid certain language that is beyond the commission’s reach under the Constitution. Whether that is so and, if so, whether it is unconstitutional, will be determined soon enough, perhaps in this very case.
“We decline to address the constitutional questions at this time,” he added, because the lower court did not rule on the free speech issue.
Indeed, a constant theme in the concurring and dissenting opinions was that the free speech issue here had yet to be decided.
For example, Justice Clarence Thomas, in his concurring opinion, wrote, “I write separately, however, to note the questionable viability of the [previous cases] that support the FCC’s assertion of constitutional authority to regulate the programming at issue in this case.”
Arguably the justice with the strictest interpretation of the Constitution now sitting on the court, he quoted himself from another case: “The text of the First Amendment makes no distinctions among print, broadcast and cable media, but we have done so.”
What Justice Thomas is referring to is the long-held view by the Supreme Court that speech over the licensed broadcast airwaves can be somewhat regulated because there is a scarcity of spectrum. He doesn’t think the scarcity or lack thereof should have been considered.
Furthermore, he points out that, with the Internet especially, broadcasting is virtually ubiquitous, making the scarcity issue moot.
We agree. Undoubtedly this case now will go through the courts to consider its First Amendment consequences, and we hope the final outcome will be to finally strike down the FCC’s current policy holding stations liable for fleeting expletives.