By a single vote, the United States Supreme Court Tuesday threw its weight behind the embattled Federal Communications Commission on the topic of the regulation (read: the banning) of "fleeting" expletives on our airwaves. Justice Antonin Scalia, writing for a fractured majority, declared that the FCC was within its statutory and regulatory authority when it sought to chastise Fox for two long-ago incidents in which "F-bomb" was used on live television at a time when children were watching.
(AP Photo/Joe Cavaretta)
But the Court refused to address, much less resolve, whether the regulations (and their statutory basis) violate the broadcaster's first amendment "free speech" rights. The lower federal appeals court had not addressed or resolved that constitutional issue so the Justices were not bound to do so, either, and it is a virtual mantra at the Court that the Justices will rarely say more than they have to in order to resolve a dispute. Here, the majority determined that they could dispatch Fox's argument without ever reaching its constitutional merits.
That means that we are almost certainly destined for another few years of this legal battle that began all the way back in 2002. Fox promised to continue the fight at the 2nd U.S. Circuit Court of Appeals, where it almost certainly will raise the constitutional issue. But if the Court's makeup remains the same for the next few years it seems likely that the broadcaster will lose again on the broader legal scope and that ruling, if and when it comes, will be a much bigger deal than this deal is today.
The FCC, for its part, heralded the ruling. It should "reassure parents that their children can still be protected from indecent material on the nation's airwaves," the FCC announced, even in the face of "blatant coarsening of programming in recent years." And, indeed, it was a concern about children mimicking the use of cuss words that they see on television that Justice Scalia cited in defending the agency and its position here.
Left unanswered, so far anyway, is how the FCC plans to cope with changing technologies—with satellite radio, for example, which doesn't yet have the same sorts of restrictions as regular, broadcast stations—and with cable television, where cuss words are routinely aired during the day when children would be apt to be watching.
Andrew Cohen is CBS News Chief Legal Analyst and Legal Editor.. You can read more of his posts in Hotsheet here.