According to attorneys involved in the challenge to the FCC's indecency enforcement regime, they should know by Monday, June 27, whether or not the Supreme Court will hear the FCC's challenge to a lower court ruling that that regime is an unconstitutional restriction on free speech.
The Supreme Court has scheduled the case for conference June 23, which is when the Justices will get together to discuss the government's request that it reverse a lower court ruling in Fox vs. FCC that struck down its indecency enforcement regime. Traditionally, the court then announces the following Monday (June 27) cases to be, or not to be, on its docket. It is widely expected to agree to hear the case.
The FCC's indecency enforcement regime has been pretty much in limbo for the last half decade as its fleeting profanity and nudity enforcement regime was running a legal gauntlet. Broadcasters argue the FCC has not given them sufficient guidance on what it will find indecent, including ruling that swearing in a blues documentary was indecent, while finding that similar language in a scripted program -- Saving Private Ryan -- was not.
The two most recent hits to the FCC's enforcement powers were the Second Circuit Court of Appeals decision that that regime was arbitrary and capricious, and then, when the Supreme Court said that was not the case, the follow-up decision last July that the FCC's indecency enforcement regime in general, was unconstitutionally vague.
It is that latter decision, by the Second Circuit Court of Appeals, that the Supremes will decide whether to hear. The court is widely expected to take the case, since it anticipated back when upholding the FCC decision-making process -- the finding that the regime was not arbitrary and capricious -- that it would likely be asked to rule on the overarching question of its constitutionality.
The Fox vs. FCC case stems from the FCC's conclusion that the "vulgar expletives" uttered by Cher and Nicole Richie during live Fox broadcasts of the Billboard Music Awards in 2002 and 2003 were a violation of community standards for broadcasting.