By Steve Bergstein
Planet Waves Contributing Editor
from his civil rights blog Wait a Second
The media seems disappointed that the Supreme Court did not hold in the “fleeting expletives” case that FCC rules prohibiting profanity on network television inherently violate free speech. Instead, the Court said that the FCC’s rules allowing the agency to punish the networks for unanticipated foul language from celebrities violate the First Amendment’s requirement that we receive fair notice of the rules before the government can punish us.
The case is FCC v. Fox Television, decided on June 21. It all started when Cher, Bono and others used the F-word and other profanities on television during award ceremonies. This was unscripted. The FCC reprimanded Fox Television for this. It also fined ABC Television over $1 million. These punishments are overturned by a unanimous Supreme Court.
We all know that the networks cannot allow premeditated cursing on television. When George Carlin did this in the 1970s on WBAI radio (the “7 dirty words”), the FCC punished the station, and the Supreme Court said that the FCC may impose these rules on the public airwaves.
At some point, however, the FCC decided that “fleeting expletives” also violate FCC rules. However, it was not clear to the networks that the rules had changed. When the FCC therefore sanctioned Fox and ABC Television, it did so without providing fair notice that “fleeting expletives” run afoul of the rules. That violates the First Amendment.
A side legal note: the Supreme Court notes that Fox Television was not financially sanctioned. The FCC said this should get the agency off the hook; sort of a no-harm-no-foul. But the Court does cry foul. The FCC could use the non-monetary sanction against Fox in the future in imposing future penalties. In addition, the Court notes that the sanction caused Fox the suffer “reputational injury.” The Court explains: