The justices agreed to give the Federal Communications Commission a chance to defend its decision to start punishing broadcasters for the isolated and fleeting on-air use of expletives, an abrupt change in the commission policy that a federal appeals court last year found procedurally improper.
It has been almost exactly 30 years since the Supreme Court ruled in the “seven dirty words” case that the First Amendment did not bar the government from regulating the broadcasting of speech that, while “indecent,” was not actually obscene. The broadcast at issue then was a 12-minute monologue by the comedian George Carlin, titled “Filthy Words,” that deliberately challenged federal regulators by highlighting “the words you couldn’t say” on the public airwaves.
For years after that ruling, despite its victory, the F.C.C. exercised its power with a light hand, disclaiming the authority to punish fleeting words that did not reflect “deliberate and repetitive use in a patently offensive manner,” as the commission said in a public notice in 1987.
In an “industry guidance” document it issued in 2001, the commission said that in deciding whether to punish a broadcaster with fines or license revocations, it would consider “whether the material dwells on or repeats at length descriptions of sexual or excretory organs or activities.” That document said that “the full context in which the material appeared is critically important.”
The approach changed soon after that, when the NBC broadcast of the 2003 Golden Globe Awards drew complaints for the expletive that the singer Bono used as an adjective to express his delight at receiving an award for best original song. The commission overruled its own Enforcement Bureau, which had denied the complaints on the basis of the existing policy, and found that the fleeting expletive fell within the definition of indecency, because it “invariably invokes a coarse sexual image” that made its broadcast “shocking and gratuitous.”
The commission did not impose a penalty against NBC, because the network “did not have the requisite notice” of the new approach, the commission said in its “Golden Globe Awards Order” in 2003.
Complaints about two other broadcasts, of the Billboard Music Awards on the Fox network, eventually led to the case the justices accepted Monday. The entertainers Cher, in receiving an award, and Nicole Richie, in presenting one, both used common expletives that generated complaints. Once again, the commission did not impose a sanction, but it made the new policy official and put broadcasters on notice there would be future penalties. A coalition of broadcasters challenged the new policy in the United States Court of Appeals for the Second Circuit, in New York, raising constitutional and statutory objections.
In a 2-to-1 ruling last June, the appeals court did not address the First Amendment challenge directly. Rather, it held that the commission had violated ordinary principles of administrative law by making “a dramatic change in agency policy without adequate explanation.” The appeals court vacated the commission’s order, instructing the F.C.C. to “articulate a reasoned basis for this change in policy.”
At the same time, the appeals court majority made it clear that any explanation would face a high hurdle. “We are skeptical” that any explanation “would pass constitutional muster,” the court said in an opinion by Judge Rosemary Pooler.
Noting that all the words at issue were “fully protected by the First Amendment,” Judge Pooler continued, “We are sympathetic to the networks’ contention that the F.C.C.’s indecency test is undefined, indiscernible, inconsistent and, consequently, unconstitutionally vague.”
In its Supreme Court appeal, Federal Communications Commission v. Fox Television Stations, No. 07-582, the commission said the ruling placed it in an “untenable position” by leaving the commission “accountable for the coarsening of the airwaves while simultaneously denying it effective tools to address the problem.”
As cable television viewers are well aware, the commission’s authority to regulate indecency is limited to the broadcast medium; whether the indecency horse is out of the barn may become an issue as the case moves forward. That will be early in the court’s next term.
Kevin J. Martin, the F.C.C. chairman, said in a statement he was pleased the Supreme Court had accepted the appeal. “I continue to believe we have an obligation to enforce laws restricting indecent language on television and radio when children are in the audience,” Mr. Martin said.
The Parents Television Council, a group whose members filed the original complaints, also said it was pleased. Of the 234 complaints the commission received after the 2003 Golden Globes broadcast, all but 17 were generated by the Parents Television Council.
The justices granted eight new cases on Monday, an unusually high number. These were among the others:
Asylum
Federal law prohibits the granting of asylum to a refugee who, before coming to the United States, participated in “the persecution of any person” on account of race, religion, nationality, ethnicity or political opinion. Accepting an appeal from an Eritrean, Daniel Girmai Negusie, the court agreed to decide whether that prohibition bars relief for a refugee whose participation in the persecution was compelled by a threat of torture or death.
Mr. Negusie, caught up in the civil war between Eritrea and Ethiopia, was drafted and forced to be a guard in an Eritrean prison, where he was ordered to mistreat prisoners. He eventually escaped, hiding in a shipping container on a ship bound for the United States. Despite a finding that he was likely to be tortured if returned to Eritrea, he was denied asylum because of his activities in the prison.
Rejecting his appeal, the United States Court of Appeals for the Fifth Circuit, in New Orleans, ruled that issues of coercion and intent were irrelevant in contrast to the treatment of these questions by other appeals courts.
In his Supreme Court appeal, Negusie v. Mukasey, No. 07-499, his lawyers at the Yale Law School Supreme Court Clinic told the justices that with an increase in civil strife around the world, the issue was arising frequently and required a uniform response in the courts. Congress did not mean to apply the asylum prohibition to those whose participation was coerced, the brief argued.
Crime Lab Reports
The court agreed to decide whether crime laboratory reports can substitute for live testimony in court by forensic examiners, an increasingly common practice in courtrooms throughout the country. The appeal by a Massachusetts man, Luis E. Melendez-Diaz, convicted of a drug offense on the basis of a laboratory report, argues that the state’s failure to make the examiner available for cross-examination violated the Sixth Amendment right to confront adverse witnesses.
The Supreme Court has been paying increased attention to the Sixth Amendment’s Confrontation Clause issues, to the consternation of many in law enforcement. The question in this case, Melendez-Diaz v. Massachusetts, No. 07-591, is whether a laboratory report is simply a business record or whether it is “testimonial evidence” to which the clause applies.
Voting Rights
The court agreed to review a sharply disputed interpretation of the federal Voting Rights Act in a case that could have significant implications for redistricting after the 2010 Census.
The question is whether a minority group must constitute a majority in a particular district to claim the protection of Section 2 of the act against having district lines redrawn in a way that dilutes the group’s ability to elect a representative of its choice.
The North Carolina Supreme Court applied such a requirement in a case concerning a 2003 redistricting plan for the state legislature. Other courts have disagreed, relying on a minority group’s cohesiveness and geographical compactness rather than strictly on numbers.
The appeal, Bartlett v. Strickland, No. 07-689, was filed by the North Carolina attorney general, Roy Cooper, with the support of civil rights groups and other states.