On Tuesday, as the rest of Washington was transfixed by the presidential election, the U.S. Supreme Court was concerning itself with a television awards show. The issue was whether the federal government could punish the Fox television network because rock star/activist Bono blurted out a version of the "F-word" on its telecast of the 2003 Golden Globe Awards.
Frivolous as its subject may seem, the case of FCC vs. Fox involves a serious increase in second-guessing by the government of what appears over the airwaves. Before 2004, the FCC declined to punish "fleeting expletives" like Bono's exclamation on the Golden Globes broadcast that winning an award was "really, really [expletive deleted] brilliant." In 1987, the commission had said that "speech that is indecent must involve more than the isolated use of an offensive word."
Then came -- or swore -- Bono. Overruling its staff, the FCC decided that broadcasters could be punished even for fleeting expletives -- though only on entertainment programs, not newscasts. That inconsistency is minor, however, compared to the fact that prime-time broadcast TV in all of its manifestations is only one source of programming, indecent or otherwise.
Chief Justice John G. Roberts Jr., despite his sympathy for the FCC rule, acknowledged that fact at Tuesday's oral argument. "It seems to me," he mused in a question to the FCC's lawyer, U.S. Solicitor General Gregory G. Garre, "that the commission might not be accomplishing terribly much if it regulates a particular medium when all sorts of other media ... are available that don't have the commission's oversight."
Roberts was referring to the proliferation of cable and satellite television, DVD players, TiVo and online entertainment, which arguably render quaint the FCC's strictures against even scripted "indecency" on television. Outdated or not, those regulations aren't at issue in this case. Rather, Fox's lawyers are arguing that the FCC acted capriciously in abandoning its decision that fleeting expletives weren't a problem.
And while the narrow legal issue is whether the FCC's change of course violated the Administrative Procedure Act, a law governing regulatory agencies, Fox's lawyer rightly pointed out that regulating speech is "inherently a 1st Amendment problem." He's right. The FCC rule is inconsistent and ineffective -- unless every live broadcast, including news bulletins, is going to be subjected to a seven-second delay.
You don't have to be [expletive deleted] brilliant to recognize that the rule is ripe for reversal by the Supreme Court.