/ November 3, 2008

Supreme Court Denies CSPAN Access to Oral Arguments in FCC v. FOX

The “fleeting expletives” case is due for argument in the Supreme Court next Tuesday, and the tapes will not be released to C-SPAN until next year.  Usually, the Court grants C-SPAN’s request to make audio tapes public immediately after a hearing, but this time, without explanation, the Court refuses to do so.
The case arises from separate incidents in which Cher, Nicole Richie, and Bono used “the f-word.”  The Second Circuit found that the FCC “failed to articulate a reasoned basis for its change in policy” when it warned FOX that it would face sanctions for “expletives” used on air (unexpectedly) by Cher and Nicole Richie.  The opinion, by Pooler, also stated that it doubted the FCC would be able to justify the opinion under the First Amendment. The FCC’s argument that it was important to regulate “indecency” was found to be too vague.
Earlier this week, the Blog of Legal times reported the irony in that C-SPAN would be breaking the very FCC Regulations being litigated if it aired Supreme Court Oral Arguments in this case.  The case is about whether the FCC may fine broadcasters when celebrities and others unexpectedly use inappropriate language on the air.
Carter Phillips, an attorney from Sidley Austin, will argue for FOX and the other broadcast.  He reports that he intends to use the “words” when referring to examples of “fleeting expletives” rather than euphemisms like “the f-word.”  He used the “words” when he argued before the Second Circuit.  C-SPAN does not plan to bleep out the language.  The FCC said it would not fine C-SPAN for broadcasting the tapes.
Source: ABA Journal

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