On November 4, 2008, the Supreme Court heard oral arguments in FCC v. Fox Television Stations, the case involving the FCC's "fleeting expletives" policy, which marks the first time in 30 years the high court has considered indecency regulation. For many years, it was Commission policy to overlook instances where an isolated expletive is inadvertently broadcast during live programming, but in recent years, the agency has changed course.
In the Fox case, the network challenged two FCC Orders penalizing stations for broadcasting expletives uttered by Cher and Nicole Richie during live awards shows. Fox challenged the Orders on the grounds that the Commission's new policy was improper under the Administrative Procedure Act (APA) and unconstitutional under the First Amendment. Last year, the United States Court of Appeals for the Second Circuit ruled in Fox's favor, finding that the FCC had failed to justify the new policy sufficiently, in violation of the APA. The Second Circuit did not reach the constitutional issues, except in dicta. The government appealed to the Supreme Court.
During the oral argument, questioning from Chief Justice Roberts and Justice Scalia seemed to indicate that the agency's action was justified. Justices Ginsburg and Breyer were noticeably more skeptical of the FCC's policy. Justices Alito and Thomas did not ask any questions.
While Justice Ginsburg made note of the policy's First Amendment implications, most of the questioning suggested that the court is inclined to rule on procedural grounds. That said, betting on the outcome of Supreme Court cases is a dangerous art. A decision is expected sometime during the summer of 2009.
A full transcript of the interesting and sometimes amusing oral argument can be found here.