Yesterday the U.S. Supreme Court heard oral arguments in FCC v. Fox, with Fox challenging the FCC fines of “fleeting expletives” in live broadcasting. This blog has a good summary of the questioning and a link to a PDF of the transcript.
Based on the questioning, it seems very unlikely that the Supreme Court will go anywhere near the First Amendment issue of whether the government has the right to censor TV and radio; it will probably be decided on the procedural issue of whether the FCC’s guidelines are too arbitrary and whether the fines were levied arbitrarily.
At least two of the Justices — Chief Justice Roberts and Antonin Scalia — seemed sympathetic to the idea that the FCC needs to have plenty of leeway to decide when naughty words are deserving of a fine. Roberts in particular seemed to take a shine to the government’s argument that in an era where there are so many naughty words in all the media where the FCC doesn’t apply, there is more of an imperative to keep broadcast TV “clean.” (For the uninitiated, Roberts is what you’d get if you crossed Scalia with Mr. Rogers. That actually sounds somewhat better than it is.)
As Broadcasting and Cable notes, five of the justices who ruled against the FCC in a previous case (dealing with cable and V-chips) are still on the court, though one of those five is Clarence Thomas and you can never tell what he’s going to do: sometimes he’s more of a libertarian type than Scalia, sometimes he isn’t. I’d like to think that the FCC will lose, because while I’m not hard-core against the idea of broadcast standards, the current situation is as bad as can be: the networks have no idea what they’ll be fined for or what they won’t be fined for, so they just censor everything. Having strict but clear censorship guidelines is actually a lot less bad than this situation; when producers know what they can’t do, they can work around it, but this…? Anyway, the court will decide sometime next year, and we’ll see.