Talking Dirty for the Public Interest

On December 20, the Second Circuit heard oral argument on an appeal from FCC indencency decisions involving some naughty words spoken live in prime time during the Fox Billboard Music Awards. Some analysis and cynical snark below.

I have discovered it is impossible to say “the Second Circuit heard oral argument on the FCC’s indecency fines” without getting snickers from the audience. Before I get to the substance of the oral argument itself, some general observations.

Nothing like indecency to spice things up. CSpan decided to cover the oral argument live. While I’m pleased they chose to do so (and thus gave me a chance to listen live, since I could not get to NYC), I don’t remember them being this interested in the (arguably) more important media ownership oral argument back in 2004. You can find a link to the CSpan coverage here.

The self-serving power of media. Aaron Sorkin’s Studio 60 just featured an episode in which the characters get in trouble when, in a live broadcast from Afghanistan, a solider uses the “F-word” when an RPG explodes 50 feet away. What an amazing coincidence that this was a subplot in an epsiode that aired right before the oral argument! Wow! A Christmass miracle of timing! Because this subplot was absolutely integral to the Christmas episode and couldn’t have been done at any other time except right before the oral argument centered on whether the FCC can declare ‘fleeting use’ of the “F-word” in a live broadcast an indecency violation.

Of course, this is a far more attractive set of facts for the indecency question than the actual events, in which Nichole Ritchie asked the audience at the Billboard music awards if they appreciated the enormous difficulty in getting [excrement] out of an [obscene gerrund] Prada purse. But hey, Hollywood is all about dressing up the reality. Why not pretend this fight is all about brave and honest news coverage when it’s really about shock jocks and spoiled celebs behaving badly to titilate the masses?

I suppose I shouldn’t get mad at Sorkin, seeing as how he also used his bully pulpit to lambast media consolidation on West Wing and I’m on his side and all. But using your entertainment megaphone like this to push your point covertly on the audience makes me a little queasy. Especially since so much other nonesense, like our noble mission to liberate Iraq and why it’s o.k. to torture suspected terrorist, gets sold in the same subliminal fashion.

News Corp., Viacom, and the rest of the “responsible” mainstream press care deeply about the First Amendment Fox Network — which is usually all about how the Administration has the right to imprison reporters, suppress information, torture suspects to protect us, and generally spews bile on anyone who dares to criticize the Administration’s exercise of federal power for our own good — argued the case for itself and the rest of the “responsible” mainstream network that has done so much to speak truth to power over the last 6 years. Apparently, diversity of ownership and reporting on things like domestic spying are not that important in the grand scheme of things. Rather, as News Corp. explained, if Cher can’t curse on live television the First Amendment is dead, the Republic will crumble, and news reporters will enagge in an awful amount of self-censorship and thus deprive the public of the news and information vital to a functioning Democracy.

Ah ha! That’s why the press hasn’t covered torture at Guantanamo! They’re all afraid some prisoner being tortured might say [excrement] or [obscene verb describing an act Fox News Channel preaches God only intended between a man and a woman married to each other]! Hooray for Fox for defending my liberty! Hooray for the brave folks in Hollywood mega-corps and “responsible” corporate media who decided that rallying against the FCC’s indecency rules is the best way to protect free speech.

Alright, on to the oral argument itself, which appeared to go well for the folks opposing the FCC’s indecency rule. Oral argument is a notoriously poor guide to how judges will actually decide, of course. But they seemed far more skeptical of the FCC’s rationale that it needed to take action to protect children than skeptical of the broadcaster argument that this policy goes too far in suppressing speech.

Basically, it seemed to me that the panel just plain doesn’t like the indecency rules, thinks they are stupid, and really wishes they could just declare the whole thing unconstitutional. Unfortunately, there is a Supreme Court case from 1978, FCC v. Pacifica Foundation, that held that Congress could lawfully tell the FCC to stop indecent material from finding its way onto the nation’s broadcast media and the FCC could lawfully fine companies for broadcasting indecent content. A Court of Appeals cannot overrule the Supreme Court, and the Supreme Court has been clear in recent years that it is not the place of a Court of Appeals to decide that a Supreme Court precedent no longer applies.

So to reverse, the 2nd Cir. CoA must rely on some administrative law grounds rather than Constitutional grounds. One way to do this is to show that the FCC’s decision is arbitrary and capricious. Here, I got to have this tremendous feeling of schadenfrued that just made my Hanukkah all happy. Twice, the FCC got seriously hoist by its own baloney petard, and I enjoyed every minute of it.

For years, to advance its agenda on media ownership agenda, the FCC has engaged in a lot of baloney about how cable and the internet are the equivalent of broadcast. O.K., says the court, please tell us why blocking indecency on television does any good? If cable and broadcast are perceived by the viewer as one and the same, what good does it do to regulate broadast and not cable? You keep saying no one knows the difference, so how do you justify such radically different treatment? To this, the FCC could only say: “We have a statute, we have a Supreme Court case. The Supreme Court treats them differently, so we have to treat them differently as well.”

So the panel moved on to the FCC’s very flexible rule about what constitutes “news.” Here, the FCC’s efforts to do an end run around one statute they don’t like has potentially compromised their ability to enforce a statute they do like. This is why we have a rule of law, people! Once you start doing all kinds of clever “Stupid Agency” tricks to get a result you like in one case, it has the potential to bite your fanny in another.

Section 312 and Section 315 of the Communications Act require that if a broadcaster gives air time to a political candidate, it must give equal time to rival candidates for the same office. The exception is the “bona fide news event” exception. If a broadcaster is doing a news story, rather than just giving air time or endorsing a candidate, then the broadcaster does not have to do equal time.

In the last few years, the FCC has pretty much made a mockery of this and the exception now pretty much swallows the rule. In 2003, the FCC declared the Howard Stern show a bona fide news program so that Howard Stern could have Arnold Schwartzeneger on and endorse him big time without giving air time to any other candidate. In the context of the instant case, the FCC initially fined an episode of the “Early Show” for an expletive in a live interview, but then reversed itself and decided that the Early Show could qualify as news and thus qualify for a bona fide news exception for a “fleeting utterance” of an obscene word. Commissioner Adelstien presciently pointed to the inconsistency in the FCC’s reasoning in his dissent to the order at issue before the Second Circuit.

Because sure enough, the court hammered on this. “Why isn’t the broadcast of the Billboard Music Awards a news show, then?” Asked judges. “What if a news program plays a clip of the indecent broadcast as part of a report on this trail, so the audience can see what the fuss is about?” Here, the FCC’s counsel realy did not have much to say, other than to maintain that the Supreme Court always recognized that context was important in determining indecent v. non-indecent material. But the court expressed concern that the FCC had created such an arbitrary standard that broadcasters could never guess with certainty whether a particular fleeting use is or isn’t indecent — especially since the FCC has no “pre-clearance” process by which a broadcaster could ascertain if a documentary or news program would meet the FCC’s standard for news.

This is not to say the broadcasters had it all their own way. The panel did press to get past the constitutional arguments (which it clearly wanted to avoid) and find out why the FCC’s decision was inconsistent with past precedent. “Can you point to a place where the FCC said it wouldn’t penalize a ‘fleeting utterance’, that this decision reverses with no explanation?” Asked the court. News Corp. conceded that no, they couldn’t, but that the FCC had simply not acted on such before. “But where is that in the record?” The court wanted to know. “It’s not arbitrary for the Commission to not act on matters not before it, and act when someone does file a compliant.”

At the end of the day, tho, I think the panel will find some way to reverse and send this back to the FCC. At which point we will see if the FCC tries to take it up to the Supreme Court or not. Since the indecency fine over the Janet Jackson case is pending in the 3rd Circuit, and the FCC still hasn’t released a final reconsideration of its decision in the Bono “[obscene gerrund for sex act] brilliant!” case, we may get a circuit split that makes an appeal to the Supreme Court more likely.

Stay the [bleep] tuned . . . .

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