U.S. Supreme Court upholds FCC enforcement of indecency regulations

WASHINGTON — The U.S. Supreme Court Tuesday upheld the Federal Communications Commission’s censure of indecent language broadcast during televised broadcasts of the Billboard Music Awards on the Fox network.  The U.S. Court of Appeals for the 2nd Circuit had held that because the words in question were merely “fleeting expletives,” Fox shouldn’t be held accountable for breaking FCC rules that forbid the use of indecent language on network television while children are likely to be watching.  Attorneys and allied attorneys with the Alliance Defense Fund filed a friend-of-the-court brief with the high court in defense of the FCC regulations in June of last year.

“The government has a legitimate responsibility to protect America’s youth from indecent and immoral content on television,” said ADF Senior Counsel Glen Lavy.  “The FCC must be allowed to take simple steps to protect children because Congress created the FCC precisely for that purpose.  The court today determined that the FCC had good reasons for its actions and did not act arbitrarily or impulsively, as had been alleged.”

On Dec. 9, 2002, about 9 million people, including more than 2.6 million children, tuned in to Fox for the Billboard Music Awards.  During the show, singing artist Cher, after receiving an “Artist Achievement Award,” used indecent language during her comments.  Millions were subjected to more vulgarity during Paris Hilton and Nicole Richie’s award presentation the following year, though the Pacific and Mountain time zones were spared.

In its opinion, the court determined that “the Commission’s new enforcement policy and its order finding the broadcasts actionably indecent were neither arbitrary nor capricious....  It is surely rational (if not inescapable) to believe that a safe harbor for single words would ‘likely lead to more widespread use of the offensive language.’”

“One cannot demand a multiyear controlled study, in which some children are intentionally exposed to indecent broadcasts (and insulated from all other indecency), and others are shielded from all indecency...,” the court wrote.  “Here it suffices to know that children mimic the behavior they observe--or at least the behavior that is presented to them as normal and appropriate.  Programming replete with one-word indecent expletives will tend to produce children who use (at least) one-word indecent expletives.  Congress has made the determination that indecent material is harmful to children, and has left enforcement of the ban to the Commission.”

The friend-of-the-court brief for ADF and the Family Research Council was co-written by ADF-allied attorneys Robert J. McCully of Shook, Hardy & Bacon, LLP; Bradley S. Tupi of Tucker Arensberg, PC; and Michael A. McCoin.  Other ADF-allied attorneys and former Attorney General Edwin Meese filed a separate friend-of-the-court brief on behalf of the Center for Constitutional Jurisprudence.

• Opinion issued by the U.S. Supreme Court in Federal Communications Commission v. Fox Television Stations

ADF is a legal alliance of Christian attorneys and like-minded organizations defending the right of people to freely live out their faith.  Launched in 1994, ADF employs a unique combination of strategy, training, funding, and litigation to protect and preserve religious liberty, the sanctity of life, marriage, and the family.