Tuesday, November 04, 2008

Broadcast Law on Election Day

Today, as Americans head to the polls to vote, the Supreme Court will hear oral arguments in FCC vs. Fox Television Stations. Up for review is whether or not the FCC can fine broadcasters for "fleeting expletives," the non-repeated use of words deemed indecent or basically dropping a few of George Carlin's Seven Words You Can Never Say on Television. In the past few years, the FCC has been increasingly capricious in its regulation of fleeting expletives, suddenly deciding to step up to the plate and dole out some fines while in other cases not fining by claiming that the expletive use has artistic merit. The Second Circuit Court of Appeals ruled against the FCC because of this arbitrariness.

Are we likely to see a sweeping decision today from the Roberts Court, greatly expanding what we can say over the air without getting in trouble with the FCC? I wouldn't be surprised if it went either way. Several former FCC chairs have submitted amicus briefs on behalf of the broadcasters, and the recent policy shift on fleeting expletives has been quite puritanical. Yet ideologically, the Court has shifted to the right. So who knows?

Please keep in mind, as you go to the polls today, that our next President will be appointing several Justices to the Court, unless a Ponce de Leon emerges and discovers the Fountain of Youth, and our highest court could very likely be hearing several more broadcast law cases of interest to KWUR and our audience.

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