On the Docket Nov. 4: Curses, Uranium & Appeals

Case: FCC v. Fox Television Stations

Date: Tuesday Nov. 4, 2008

Issue: Did the court of appeals err in striking down the Federal Communications Commission's (FCC) determination that the broadcast of vulgar expletives may violate federal restrictions on the broadcast of any obscene, indecent, or profane language, when the expletives are not repeated?

Background: Live broadcasts of the 2002 and 2003 Billboard Music Awards on FOX produced "fleeting expletives" from Cher and Nicole Richie. The offending words F***, s*** and F***ers were not censored and produced complaints to the FCC that young children had been exposed to the foul language during the so-called "family hour." Those complaints eventually led the FCC to admonish FOX, but it did not levy a fine. Its determination came after the Commission had put into place more stringent policies related to foul language. It did so partially on the belief that it was an "inescapable conclusion that such language presents a threat to children in the audience." It put into place its own two-part test to assess as illegal the broadcasting of language that is indecent and patently offensive to community standards.

FOX, joined by other networks, appealed the FCC's ruling and found success in the Second Circuit. A divided panel concluded the FCC's rule changes were "arbitrary and capricious" and it questioned the merits of the rules when put against First Amendment rights to free speech. It also concluded the use of the F-word does not always have a sexual and therefore offensive connotation.

In its appeal to the High Court, the FCC says its disputed policy change is sound. And in response to the Second Circuit's contention that the F-Word is not always offensive, the FCC argues "it is in a better position to evaluate the connotations of language. [T]he F-Word is effective when used to intensify or insult precisely because it has an offensive sexual connotation. Moreover, fine points of the distinctions between denotations and connotations may be lost on children seeking an explanation of the words meaning from their parents."

FOX argues the lower court's ruling should stand. "The FCCs regulation of indecency has for decades been characterized by restraint and caution [with its recent rule changes, it] has abandoned that restrained approach. It now holds that certain words — at least f*** and s*** — are inherently indecent and subject to sanction without regard to whether they are intended and repeated. The FCC has, in short, abrogated its cautious enforcement policy and now punishes utterances willy-nilly that fall far short of the 'verbal shock treatment' that for decades described what was necessary to satisfy the requirement that language be 'patently offensive.'"

This is the first broadcast indecency case in front of the Court since 1978 when it issued its landmark Pacifica decision. That ruling affirmed the FCC's right to regulate the airwaves. It achieved notoriety because a radio station aired an unedited version of comedian George Carlin's popular "Dirty Words" monologue. A number of third parties have filed amicus or "friend of the court" briefs supporting both sides. Those in favor of the FCC include the National Religious Broadcasters, Morality in Media, Inc. and the Family Research Council. In support of FOX are groups such as the ACLU, National Association of Broadcasters and the other broadcast networks.

Note: FOX News Channel and FOXNews.com are each owned and operated by News Corporation, as is FOX Broadcasting, the main respondent in this case.

Case: United States v. Eurodif S.A.

Date: Tuesday Nov. 4, 2008

Issue: Can the Commerce Department impose anti-dumping duties on products in which an American firm pays for and supplies the raw materials to a non-American company for a substantially different finished product in return?

Background: The purpose of anti-dumping taxes is to protect domestic companies from international firms who sell goods in the United States at below prevailing market costs. There are many reasons foreign companies may do this, especially if they have the subsidized support of their home governments.

The most recent noteworthy instance of protracted and alleged dumping was by the Chinese earlier this decade, who flooded the U.S. market with steel well below what American companies could offer. Naturally, American businesses in need of steel flocked to the cheap Chinese offerings and left domestic producers crippled. For almost two years during his first term, President Bush imposed tariffs on incoming steel products to level the playing field. It was a significant protectionist move by the strong free trade administration.

The premise of this case is similar — with a wrinkle. The product at issue is low enriched uranium. The international firm accused of dumping (Eurodif S.A.) obtained the raw uranium from an American company, enriched it and sold back the finished good to that same company. One of Eurodif's American competitors, the United States Enrichment Corporation, calls it dumping — and the Commerce Department agrees. But the D.C. Circuit of Appeals concluded no dumping was going on. It ruled Eurodif's transactions were merely sales of services and therefore not subject to anti-dumping regulations.

For its part, The Commerce Department has argued its interpretation of the anti-duping laws is correct and necessary because the issue is also "a matter of considerable importance to U.S. national security and foreign policy interests."

Case: Jimenez v. Quarterman

Date: Tuesday Nov. 4, 2008

Issue: Should a "Certificate of Appealability" be issued under extraordinary circumstances even though a one-year filing deadline has passed?

Background: In 1991, Carlos Jimenez of Texas was convicted of burglary and because of other bad acts was eventually sentenced to 43 years in prison. Jimenez has so far been unsuccessful in his attempts to get his conviction overturned. A number of errors — not of his doing — prolonged this appeals process, but eventually the state courts ruled against him. Jimenez is now seeking review in federal courts claiming he had ineffective counsel at his trial. But he hasn't been able present his case because the government successfully argued Jimenez hadn't made his federal appeal in a timely manner. The circumstances would suggest the timing issue isn't Jimenez's fault, but the letter of the law puts him in a bind as the Fifth Circuit upheld the lower court ruling that his appeal wasn't filed in time.