Fleeting expletives
C-SPAN re-aired the Second Circuit argument in Fox v. FCC this evening. Riveting.
Judges Rosemary Pooler and Pierre Leval had sharp questions for the FCC: why aren't you concerned about violence? if a parent doesn't want to protect their kids, why are you stepping in to do so? (answer: because Congress and the Supreme Court have said we should). how is anyone supposed to know in advance whether their broadcast will be indecent — can you get a no-action letter (answer: no, but we've given lots of examples of non-indecent speech in our orders).
It's an important case. It looks as if the judges are really questioning why the FCC does what it does. Carter Phillips was very emphatic in arguing that the FCC had made a 180-degree turn away from its enforcement policies of the last 25 years by suddenly focusing on fleeting, gratuitous expletives, and implied that political pressure had caused the switch. He's confident that the FCC's move can't possibly survive strict scrutiny, and he's urging the court to declare the entire scheme unconstitutional.
The absence of safe harbors or any real guidelines seems particularly troubling — the chilling effect on speech of not knowing whether someone will come after you with a fine has to be substantial. And the fact that broadcast is treated differently from everything else — also silly. Plus the fact that there is no evidence that children are actually harmed by fleeting expletives.
And, of course, the argument (which included plenty of fleeting expletives) wasn't itself indecent — it's news. Eric Miller, the FCC lawyer, said as much during the hearing. So awards programs (the Billboard Awards) aren't protected, but the Daily Show is? Very tricky stuff, this speech censorship business.
[nice Harold Feld summary here]