Fox and the FCC squared off in federal court Wednesday over the FCC's profanity findings against Fox's Billboard Awards shows.
Arguing for Fox, Carter Phillips essentially said that the FCC could not de facto provide a reasoned analysis of its change in policy toward profanities because that policy was inherently unreasonable.
The bottom line, asked Judge Peter Hall, is that the FCC cannot regulate fleeting expletives? Yes, said Carter, though he said he did not have to prove that. He only needed to prove that the FCC did not justify regulating them in this case.
As the judges made clear, they are not eager to reach to the constitutional question and will decide the case on as narrow grounds as possible.
Carter said the commission had two choices in its profanity policy. Either it could attempt to ban all expletives, which it did not appear to be willing to do, or it could go back to its previous policy. Anything else, he said, "creates censorial board with the commission picking and choosing what it likes and doesn't."
The FCC case appeared to take its biggest hits from the judges'questions about whether its policy, in which the same words uttered by the same people were indecent in one context (entertainment) and not in another (news), makes it difficult for broadcasters to determine what might get them in trouble.
Citing the example of when the FCC took CBS' The Mornings Show's word that it was a news show--and not entertainment-- and subsequently reversed a finding against the show for profanity, the judges also questioned whether it was giving broadcasters a way out by simply classifying everything as news.
Could the Billboard Awards coverage count as news?, asked Judge Peter Hall. Perhaps, said FCC attorney Eric Miller, but Fox did not argue that point. Miller pointed out that the FCC has never found any language indecent where a news context was asserted.
Judge Rosemary Pooler took aim at the FCC's attack on the V-chip. She pointed out to Miller that the FCC had found the chip met Congress standard for an effective plan for parental content control, then did not weigh in again until trashing the chip in its defense of the changed regime.
She asked whether if the FCC thought the chip wasn't working, why it did not put broadcasters on notice sooner so they could take some action and perfect a system that would then be a more narrowly tailored solution than the FCC's profanity policy.
But the FCC also got some help from Judge Pierre Leval on drawing its distinction between news and entertainment. Calling the distinction a reasonable hypothesis, Leval said that people might be shocked to hear that a federal judge had said "fuck" during oral argument, but that the context of a case dealing with profanity would make it different than if the case were about something else.
Leval also suggested that, in an era where there was so much unregulated content on cable and the Internet, the FCC was establishing a zone in which there was a relatively certain degree of freedom from what the government deemed indecent of profane.
Miller argued that the FCC had provided guidance on its policy through what it did and did not find indecent, saying the policy was instituted through a series of adjudications, likening the picture of indecency it created to a mosaic.
Miller said the FCC was not in the business of pre-screening shows or providing guidance through what would constitute prior restraint, but he did say that the FCC would likely not find coverage of the oral argument indecent--in which swear words were used by judges and the Fox attorney and carried unexpurgated on C-SPAN and C-SPAN radio--if it were picked up for the local news, including if the offending Billboard Broadcasts were re-run as back story.
C-SPAN will repeat the arguments in their entirety at 9:15 p.m. Wednesday night and again on Saturday night at 7 p.m.
It aired the program with an occasional graphic warning: "This program contains language some viewers may find offensive."
The court now has to weigh the arguments, with a decision not expected until February or March. Meanwhile, the FCC is scheduled to weigh in by Dec. 26 with its defense of the Janet Jackson Super Bowl fine.
