Supreme Court to Hear Indecency Case
National News
The U.S. Supreme Court has stepped into one of the biggest free speech fights of the past three decades, but it's unclear how far the court will go when it rules on just how much trouble broadcasters can get into for a slip of the tongue.
On Monday, the court agreed to hear arguments over the Federal Communications Commission's policy regarding so-called "fleeting expletives" in a closely watched case that will decide whether the government can fine or revoke a broadcaster's license because someone says a bad word. The case will be argued late this year.
Both News Corp., the Fox Broadcasting parent that wanted its victory in a lower court to stand, and the FCC, which pushed the Bush administration to appeal the case, applauded the justices' decision.
"The commission, Congress and most importantly parents understand that protecting our children is our greatest responsibility," FCC chairman Kevin Martin said.
Solicitor general Paul Clement, the Bush administration's top lawyer, urged the court to take the case, arguing that the appeals court decision had placed "the commission in an untenable position," powerless to stop the airing of expletives even when children are watching.
Fox said the move would "give us the opportunity to argue that the FCC's expanded enforcement of the indecency law is unconstitutional in today's diverse media marketplace, where parents have access to a variety of tools to monitor their children's television viewing."
The case surrounds two incidents in which celebrities used profanity during the Billboard Music Awards. In 2002, Cher told the audience: "People have been telling me I'm on the way out every year? So f--- 'em." The next year, Nicole Richie said: "Have you ever tried to get cow s--- out of a Prada purse? It's not so f---ing simple." (The Nielsen Co. owns Adweek and Billboard.)
Although the case concerns those utterances, it is grounded in a policy the commission developed after a 2004 incident in which U2's Bono said on NBC that winning a Golden Globe was "really, really f---ing brilliant." After that, the commission changed its long-standing policy and decided that some words are so inherently awful that broadcasters are liable even if the words come as a surprise. (NBC challenged the decision, but that case has yet to be resolved.)
The FCC found that Fox violated the Bono doctrine for the comments made by Cher and Richie, but the panel decided against issuing a fine because the shows aired before the commission altered the policy.
Fox, CBS, NBC and other broadcasters challenged the commission's decision, arguing that it chills free speech, threatens live programming and is unduly vague.
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Workers’ Compensation Subrogation of Administrative Fees and Costs
When a worker covered by workers’ compensation makes a claim against a third party, the workers’ compensation insurance retains the right to subrogate against any recovery from that third party for all benefits paid to or on behalf of a claimant injured at work. When subrogating for more than basic medical and indemnity benefits, the Texas workers’ compensation subrogation statute provides that “the net amount recovered by a claimant in a third‑party action shall be used to reimburse the carrier for benefits, including medical benefits that have been paid for the compensable injury.” TX Labor Code § 417.002.
In fact, all 50 states provide for similar subrogation. However, none of them precisely outlines which payments or costs paid by a compensation carrier constitute “compensation” and can be recovered. The result is industry-wide confusion and an ongoing debate and argument with claimants’ attorneys over what can and can’t be included in a carrier’s lien for recovery purposes.
In addition to medical expenses, death benefits, funeral costs and/or indemnity benefits for lost wages and loss of earning capacity resulting from a compensable injury, workers’ compensation insurance carriers also expend considerable dollars for case management costs, medical bill audit fees, rehabilitation benefits, nurse case worker fees, and other similar fees. They also incur other expenses in conjunction with the handling and adjusting of workers’ compensation claims. Workers’ compensation carriers typically assert, of course, that, they are entitled to reimbursement for such expenditures when it recovers its workers’ compensation lien. Injured workers and their attorneys disagree.