On January 13, 2010, the U.S. Court of Appeals for the Second Circuit revisited broadcast indecency in Fox v. FCC-the "fleeting expletives" case. The case is on remand from the U.S. Supreme Court, which held in a 5-4 decision last year that the FCC did not act in an "arbitrary" or "capricious" manner by changing its policy to find actionable indecency for the fleeting utterance of expletives during two live broadcasts of the Billboard Music Awards. The Supreme Court reversed the Second Circuit's ruling and held that the FCC's departure from its long-standing fleeting expletives exception was done within the bounds of the Administrative Procedure Act's limitations. The justices, however, refused to address First Amendment arguments because the Second Circuit's original ruling disposed of the case solely on narrower, procedural laws governing administrative agencies. Instead, the high court sent the case back to the Second Circuit to fully consider the constitutionality of the new, harsher fleeting expletives policy. In a non-precedential portion of its original opinion, the Second Circuit touched on constitutional arguments, and indicated that the FCC's new approach would face a significant First Amendment barrier. Now, after the recent round of oral arguments, the Second Circuit's anticipated decision will focus on whether the FCC's regulation of fleeting expletives has cleared that constitutional hurdle under the First Amendment.
In a related and equally prominent proceeding, the Third Circuit Court of Appeals will hear oral arguments on February 23, 2010, in CBS v. FCC-the Janet Jackson "wardrobe malfunction" case. The Third Circuit originally dismissed indecency sanctions imposed against the media outlet for "fleeting" nudity aired during the half-time performance of Super Bowl 2004. The Third Circuit, much like the Second Circuit, held that the fine was an arbitrary and capricious departure from the FCC's long-standing, lenient approach to fleeting indecency. The FCC appealed both the Second and Third Circuit decisions to the Supreme Court. The Fox decision, however, reached the high court first. Thus, the Supreme Court subsequently vacated the CBS decision as well. The CBS case was sent back to the Third Circuit for a new look based on the implications of the Supreme Court's fleeting expletives decision in Fox. The second round of oral arguments before the Third Circuit will likely include First Amendment issues similar to the FCC v. Fox case. The Circuit Court, however, has also asked for and received supplemental briefs, which highlight a narrower issue that may again dispose of the case on the basis of nuanced administrative law. The court will hear arguments as to how, if at all, the Fox case applies to the CBS fine. Specifically, in light of Fox, the case will now likely focus on whether the FCC's fleeting indecency polices have ever applied to fleeting images, such that the administrative law implications of Fox's ruling on fleeting utterances would be incompatible in analyzing fleeting nudity.
The Supreme Court's decision in Fox v. FCC is available here, and the FCC's supplemental brief in CBS v. FCC is available here. Further, you can view the recent oral arguments before the Second Circuit in Fox v. FCC available here.