Fighting for our f’ing First Amendment

The Wall Street Journal reports that the judges on the federal appeals court gave the FCC a tough time in oral arguments over fines against Fox:

The judges bored in on the FCC argument. Noting that the hearing was being broadcast on C-Span, the judges quizzed Mr. Miller about whether news programs that subsequently air the oral arguments — where the offending words were sprinkled liberally throughout — would violate FCC standards.

Mr. Miller said likely not, as the words are used for legitimate news purposes.

“This seems to be a scheme that depends on what you [the FCC] think instead of having objective criteria,” said Judge Rosemary Pooler, part of the appeals-court panel. “Are you just telling the networks … to make some sort of cockamamie claim and they’ll survive?”

Judge Pooler kept Mr. Miller on the defensive throughout his half-hour long argument, telling him he seemed to contradict himself over whether broadcasters can claim virtually anything has news value. Later, she asked why the FCC had cited a need to protect children from profanities when it had cited no studies finding children were injured by them, but yet had never sought to penalize broadcasters for violence in programs when many studies show they do injure children.

I smell a Constitutional moment coming on. Fingers crossed.

  • I listened to it on Sirius, and the account is correct. At first I was worried because the judges grilled the Fox lawyer. But when the FCC lawyer stood in, they hammered him. They tangled him up in every argument he made, and he did an ugly job trying to dance out of his predicament.

    I’m optimistic that the court will rule in Fox’s favor, but one of the judges repeated many times that the court is interested in ruling on the fewest questions necessary to resolve the case. If they don’t have to address the Constitutional question, they won’t. The Fox lawyer smelled blood for going after the Constitutional question, but I don’t think the Court will go that far.

    But I’m just a layperson hoping for the Constitutional moment, like you.

  • I should add, C-SPAN is re-airing it on television on Saturday at 7pm, I think.

  • Tom

    We would be instantly outraged if the government tried to set up a commission to supervise newspapers, yet we allow the government to do that to TV and radio. The FCC may have been justified in the past due to the scarcity of airwave frequencies, but that justification has been wiped out by current technology and therefore the FCC should be totally abolished. It would be very convenient to do it by judicial fiat.

  • Duffer
  • Richard Cook

    You gotta get back on your meds girl.

  • I watched the arguments, nerdily fascinated by the process. The judges indeed seemed dubious of the FCC’s arguments. I also thought the FCC’s lawyer seemed a bit of a lightweight for the job. He stammered with every rhetorical blow the court dealt him. He argued his way into a circle. Without knowing a thing about the guy, I thought he was young and inexperienced. (He could be a constitutional law scholar for all I know – his performance was weak.)

    The Court asked all the questions I would have if I were going on the attack. The best part was when the FCC lawyer talked about how children now have TVs in their rooms. (That’s why we need the government to protect them.) The judges, as you’d expect, clearly believed that was a parent’s choice, not the government’s.

    This is going all the way to the Supremes.

  • Jeff,

    What about this more important free speech ruling?

    I just don’t see how you think obscenity is a more important First Amendment issue than freedom of political speech.

  • Hasan Jafri

    In Seattle issues like this are settled over a latte at Starbucks, so I don’t know if this should go to the Supreme Court.

    That said, part of the problem stems clearly from different standards courts — and governments– apply to different media. Why do print newspapers get a relative free ride while film and television labor under medieval codes of decency and good behavior? And why is new media — in the United States — viewed still as the bottom feeder in the equation? It will be interesting to see where our courts — and by corollary American society — position themselves on these issues as time goes on.

    U.S. judges should be aware though that they are venturing into uncharted seas in more way than one. I am a Seattleite in Hong Kong, and from my vantage point I can safely say U.S. court proceedings and decisions in a globalized world are watched and studied by judges in Asia. This has implications beyond our orders, especially for new media.

    During the ITU conference here in Hong Kong earlier this month, the Chinese government made the unprecedented gesture of opening up the internet. As reported by IHT tech editor Victoria Shannon on her blog Digital Dialogue Wiki entries on China, which are routinely blocked, were available to everyone — including people in the People’s Republic. I believe this was a Chinese “yes” to the new media community’s values. It was a stunning move, and in some ways grounbreaking. It was also evidence that new media, being by definition a community rather than an arbitrary corporation chopping wood, has the potential to earn the respect of foreign governments.

    How long will this trend last if our own judges take a contrarian view? Anyone — including Jeff Jarvis — care to enlighten us on where this is going, globally?

    Merry Xmas!

  • EB

    I watched it on C-Span, too!
    The FCC lawyer looked so young and scared that to compare him to a “deer in the headlights” would be unkind to deer.

    You really should watch it if you can, rather than listen to it. I loved how the first lawyer (for Fox) just started spouting expletives in his argument, and then later one of the Judges later asked a question saying: What if someone showed a clip of this court case on the news which contained the banned words, would that station get fined? (paraphrasing) … I guess “news” is ok to have “fleeting expletives” in.