Setting the stage for what could be the first Supreme Court showdown over broadcast indecency in nearly 30 years, three major networks argued in federal court filings Wednesday in New York that the government’s recent crackdown on vulgarity on the airwaves should be stopped.
Fox, NBC and CBS made the case that tougher policies put in place by the Federal Communications Commission since 2004 were arbitrary and unconstitutional.
After months of legal maneuvering, the U.S. 2nd Circuit Court of Appeals in New York has set oral arguments for Dec. 20. A decision could be handed down early next year, leading to appeals that could land the case in the Supreme Court.
Wednesday’s legal filings follow one by CBS to the U.S. 3rd Circuit Court of Appeals in Philadelphia on Monday challenging the $550,000 fine levied by the FCC after Janet Jackson briefly exposed one of her breasts during the network’s 2004 Super Bowl halftime show. The incident caused a national outcry and triggered stricter indecency rules at the FCC that almost always prohibit the use of the “F-word” and “S-word.”
In a 77-page brief filed Wednesday, Fox called the new rules a “radical reinterpretation and expansion” of the FCC’s authority and said they had sent a chill through the broadcast industry.
“The result is the end of truly live television and a gross expansion of the FCC’s intrusion into the creative and editorial process,” Fox said. CBS and NBC made similar arguments.
FCC spokesman David Fiske said Wednesday that the networks were misguided.
“By continuing to argue that it is OK to say the F-word and the S-word on television whenever it wants, Hollywood is demonstrating once again how out of touch it is with the American people,” he said in a statement.
Walt Disney Co.'s ABC network, which had joined the other networks in filing notices of appeal in federal court in April, did not file a legal brief Wednesday. Complaints against ABC’s “NYPD Blue” were recently dropped by the FCC.
The networks are contesting rulings made in March that covered broadcasts on ABC, CBS and Fox. Those rulings were the first under a 2004 order by the FCC holding that use of the F-word or S-word was almost always indecent, a major shift for an agency that had held for years that unintentional and brief uses of the words were allowed.
Among the violations cited by the FCC in March were unscripted use of the words during Fox’s broadcasts of the “Billboard Music Awards” in 2002 and 2003 and a similar word during an interview on “The Early Show” on CBS, and coarse language on several episodes of “NYPD Blue.”
Because those incidents occurred before the FCC outlined its get-tough policy in 2004, the agency did not fine the networks. But network executives were outraged and challenged the FCC, saying the rulings set a bad precedent that could lead to large future fines.
This summer, the court allowed the FCC to reconsider its March order. On Nov. 7, the FCC reversed itself on “The Early Show” ruling because it came during a news interview, which warrants more liberal interpretation of the indecency standards.