We already know, because attorney Carter Phillips has said so, that the tender ears of the Supreme Court justices -- and the audience at the Supreme Court in general -- will be subjected to raw expletives on Tuesday during oral arguments in FCC v. Fox Television Stations. That's the so-called "fleeting expletives" case in which the Federal Communications Commission's changing policy on the one-time, unscripted use of expletives on award shows and the like will be examined. Sidley Austin's Phillips, who will argue the case for the broadcast media, has said that unless otherwise instructed, he won't use euphemisms for the words that brought on FCC warnings.
Now comes C-SPAN into the fray. As it does several times each term, the cable network is asking the Court for same-day quick turnaround release of the audio tapes of the FCC arguments. (Without this special handling, the audio is usually not made public until after the term ends -- long after its newsworthiness has faded.) When the Court says yes to its requests, C-SPAN airs the audio of the argument within minutes of its conclusion, not just on cable but on its FM and XM radio channels.
Which raises the question whether, in airing the oral argument, C-SPAN itself will run afoul of the FCC policy at issue in the case by broadcasting the same offending words. Not likely, says a Broadcasting & Cable story which notes that expletives uttered in news broadcasts are almost certainly exempt from punishment. A C-SPAN spokesman says an advance warning will probably be given to alert listeners to the potentially offensive language.
The latest C-SPAN request sheds light again on the Court's inscrutable criteria for deciding when to allow and when to deny broadcasters' requests for same-day access to oral argument audio. At this helpful page C-SPAN notes that last term, for example, the Court gave access to the audio of Baze v. Rees, the lethal injection case, but not the audio of Kennedy v. Louisiana, the child-rape death penalty case. It also released audio for the Guantanamo Bay case Boumediene v. Bush and the Second Amendment case D.C. v. Heller, but not for the politically charged Voter ID case of Crawford v. Marion County.
First reported in The BLT: The Blog of Legal Times