Caught between a rock and the Second Circuit, the FCC hesitantly took the defense of its indecency policy to the Supreme Court today. The FCC filed a petition seeking the Court’s review of the Second Circuit’s decisions in indecency cases involving Fox and ABC programs. Last year, the Second Circuit found the FCC’s interpretation of indecency to be arbitrary and capricious. On appeal, the Supreme Court disagreed, and lobbed this perennial hot potato back over the net to the Second Circuit for an assessment of the constitutionality of the FCC’s indecency policy.
Whether intentional or not, the Supreme Court’s return of the matter to the Second Circuit was the legal equivalent of a high lob, and the Second Circuit enthusiastically slammed the ball back across the net, ruling that the FCC’s current indecency policy is unconstitutionally vague. In light of its earlier ruling, the Second Circuit’s conclusion was hardly a surprise. More curious, however, was the government’s reaction to it. Rather than again storming to the Supreme Court to defend its indecency policy, the FCC first asked the Second Circuit to reconsider its decision (a request that was denied in November 2010), and then sought not one, but two extensions of the deadline for requesting Supreme Court review.
The FCC waited until the end of even that extended period before seeking joint review of the Fox and ABC decisions (the deadline for the Fox decision was today, while the FCC actually had until May 4th to seek review of the ABC decision). In asking that the cases be considered together, the FCC is making the calculation that “scripted nudity” in ABC’s NYPD Blue presents a more compelling case for government regulation than the Fox case, where the agency concluded that fleeting expletives (during the Billboard Music Awards) were a form of actionable indecency despite years of precedent to the contrary. That new interpretation, which the FCC first announced with regard to an NBC broadcast of the Golden Globe Awards, gave everyone (including FCC staff) a case of regulatory whiplash, whereas the FCC’s ongoing, if erratic, feud with broadcast nudity was hardly a surprise (and therefore less controversial).
The government’s hesitance to bring all of this to the Supreme Court’s doorstep a second time is even more curious after reading the petition, which bluntly states that “The court of appeals has effectively suspended the Commission’s ability to fulfill its statutory indecency enforcement responsibilities unless and until the agency can adopt a new policy that surmounts the court of appeals’ vagueness rulings.” The petition then suggests that no functional indecency policy could overcome that hurdle. It is therefore apparent that the FCC’s delay in bringing the challenge (which to be fair, necessarily involves getting the Department of Justice on board) is not the result of any belief that the agency might have been able to “live with” or “work around” the Second Circuit’s ruling by revising its policy. There is clearly something else at work here.
From a legal perspective, the FCC’s petition is well written. However, in reading through it, you can’t avoid the impression that even the FCC is trying to convince itself that the technological and cultural shifts of the last decade or two have not rendered the notion of government second-guessing broadcast content an anachronism. In particular, it is hard to escape the irony of the FCC seeking to bring high speed Internet into every home by reallocating broadcast spectrum based on the argument that only 10% of Americans are viewing over-the-air television. If true, then the government is expending a lot of effort to control what that 10% sees on their televisions, while racing to use those airwaves to bring these same households the wonders of the Internet–including all of that content that they aren’t allowed to see on their TV’s.
The convergence of distribution technologies is upon us, and whether that claimed 10% of households uses their TV’s V-Chip, or an Internet software filter on their computer, to prevent unwelcome content from entering their home, the result is hardly different. The FCC’s sudden shyness in defending its indecency policy suggests that it is concerned that the Supreme Court may note that incongruity as well.