Two weeks before the Supreme Court will decide the fate of the Federal Communications Commission's indecency policy, the head of the organization that broadcast the expletives behind the case offered a candid defense of his right to do so. "If anyone had told me that my company would be before the US Supreme Court defending inane comments by Cher and Nicole Richie, I would have said you're crazy," News Corporation President and COO Peter Chernin told the Media Institute on Wednesday, accepting the group's Freedom of Speech award.

On November 4, the high court will decide whether News Corp's Fox Television violated the FCC's indecency rules by airing Cher and Richie's off-the-cuff comments at the Billboard Music Awards, which included references to "cow shit" and use of the f-bomb. The Second Circuit Court of Appeals decided in June of 2007 that the agency had not adequately explained why it suddenly abandoned its long-standing tolerance of "fleeting expletives"—unscripted dirty words said on the fly. The FCC then appealed the decision to the Supremes, which, to the surprise of some First Amendment attorneys, agreed to take the case.

But crazy or not, Chernin warned that if the big nine back the FCC, it will make a big difference. "If we are found in violation, just think about the radical ramifications for live programming – from news, to politics, to sports," he warned. "In fact, to every live broadcast television event. The effect would be appalling."

Pass on the whip cream

Still, Chernin could not help but distance himself from some of the indecency cases that are making their way through the FCC's appeals process and the courts. These include the agency's crackdown on Married by America, a deservedly extinct TV show, one episode of which included some newlyweds partying at a strip club. The FCC ruled that the scene was insufficiently pixelated. Fox has refused to pay the fine and the case is in court.

"I'll admit: some of the content we are defending is not particularly tasteful," Chernin conceded. "The expletives, the brief nudity, the carefully placed whipped cream and, of course, the pixels. I would not have allowed my own children, when they were younger, to watch some of these shows."

But Fox's boss insisted that if the FCC wins on this issue, "it is the beginning of the steep slide toward censoring unpopular political content." Chernin noted that the FCC recently came pretty close in one instance to sanctioning a news program that included an expletive. That was CBS's Early Show, on which a guest declared that "I knew he was a bullshitter from Day One," in an interview regarding another competitor in the Survivor TV series.

Originally the FCC wanted to sanction the program, then reversed course when CBS appealed the decision to the Second Circuit. The Commission then conceded that the interview could be understood as a news feature and deserved First Amendment protection.

Nobody knows exactly why the Supreme Court took the Fox Billboard cases. The justices could rule against the FCC narrowly, declaring that its new policy on fleeting expletives runs afoul of the Administrative Procedures Act. The Supremes also could, as various former FCC chiefs have asked, take the opportunity to more strongly curtail the agency's indecency powers. Or the court could uphold the Commission's new rulings.

Chernin told the Media Institute that, however the case gets resolved, Fox won't back down on this issue.

"As a media company, we have not just a right but a responsibility to stand up to the government when it crosses that First Amendment line in the sand–even if the content we are defending is in bad taste," he said. "And in the indecency context, that line has not only been crossed, it has been obliterated."

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