Supreme Court defers action on TV 'expletives' case
WASHINGTON -- The Supreme Court took no action today on the government's move to levy large fines on broadcasters who let expletives slip on the air during daytime or early evening hours -- leaving the issue still pending before the court.
At times, the justices debate a pending appeal and defer action until they have had more time to consider an aspect of the case. The court will next issue orders on pending appeals March 17.
Last year, an appeals court in New York blocked the Federal Communications Commission from enforcing its new rule against "fleeting expletives." And Bush administration lawyers had urged the Supreme Court to take up the dispute and to give the FCC a green light to enforce the new policy.
The appeal was considered by the high court in its closed conference on Friday, but the justices did not say today whether they had agreed to hear it or deny it.
Lawyers for Fox TV and the other networks had urged the justices to stay out of the case. They said the FCC should be forced to explain why the agency had changed course in 2004 and adopted a near zero-tolerance policy for broadcast expletives.
The FCC case could be decided narrowly by focusing on whether the agency had justified its new policy. Or the justices could focus broadly on whether the 1st Amendment's free-speech guarantee shields broadcasters from being fined for inadvertently allowing an expletive to be aired during a live performance.
Network executives say they have a firm policy against broadcasting vulgar words during the hours when children and families are watching. On occasion during a live broadcasts, however, guests or performers have uttered the f-word, and a network monitor failed to bleep it out in time.
The incidents cited by the FCC occurred during the broadcasts of entertainment industry awards shows.
If the court eventually votes to take up the case, FCC vs. Fox TV, it will be heard in the fall. If the justices deny the appeal, the FCC will have to try again to persuade a lower court to allow its new rule to be enforced.
In other action, the justices split 4-4 in a case testing whether the makers of the diabetes drug Rezulin could be sued by patients in Michigan and Texas.
In most states, people who are harmed by a prescription drug can sue the drug maker for damages. By contrast, Michigan and Texas allow suits only if the drug company lied to the Food and Drug Administration to win approval for its drug.
Rezulin was withdrawn from the market in 2000, and plaintiffs lawyers say drug maker Warner Lambert deceived the FDA about the drug's safety.
In its appeal to the Supreme Court, the drug maker said the suit should be blocked because it intervened with the internal business of the FDA.
In a one-line order, the eight justices said they were evenly divided, and this has the effect of allowing the Michigan suits to proceed.
Chief Justice John G. Roberts Jr. holds stock in the drug company, and he had recused himself from the case.
In the fall, the justices will take up a much broader challenge testing whether drug makers are to be shielded from lawsuits.
david.savage@latimes.com
