July 13, 2010: The U.S. Court of Appeals for the Second Circuit has struck down the FCC’s 2004 change in policy on fleeting indecency, vacating an FCC finding that a “single, nonliteral” use of an expletive on the air in 2003 constituted broadcast indecency, as well as an omnibus order that followed ruling that other broadcasts were indecent under the same standard.
The 32-page order cites the 1978 Pacifica ruling and the FCC’s history of restrained indecency enforcement after that case; restraint that held until 2004, when, the ruling says, “The FCC’s policy on indecency changed.” After the 2003 NBC Golden Globes broadcast in which Bono exclaimed that receiving the award was “fucking brilliant,” the FCC “declared, for the first time, that a single, nonliteral use of an expletive (a so-called ‘fleeting expletive’) could be actionably indecent.” Under that criterion, the commission later decided that expletives, most unscripted, on earlier broadcasts on Fox, ABC, and CBS were also indecent.
Additionally, at about the same time, the FCC “began issuing record fines for indecency violations,” and treating each licensee’s broadcast of indecent speech as a separate violation, each of which could be liable for a separate forfeiture. Congress soon upped the maximum indecency fine from $32,500 to $325,000 — meaning, says today’s court ruling, that “the fine for a single expletive uttered during a broadcast could easily run into the tens of millions of dollars.”
NBC Universal and other parties filed petitions for reconsideration of the Golden Globes order, and Fox Television Stations, CBS, and ABC filed petitions for review of the later omnibus order that ruled that broadcasts of the Billboard Music Awards on Fox, The Early Show on NBC, and NYPD Blue on ABC were indecent (the FCC later dropped the Early Show and NYPD Blue matters).
The court ruled at that time that the FCC’s change in policy on fleeting indecency was “arbitrary and capricious,” but did not address the constitutional issues. The FCC then took the matter to the Supreme Court, which disagreed with that the change was arbitrary, but also declined to deal with the constitutional arguments and sent the matter back to the Second Circuit for review.
So, in looking at the First Amendment implications of the FCC’s policy on fleeting indecency, the Second Circuit has now found the policy unconstitutional, on the grounds that it is impermissibly vague.
Says the court, “A law or regulation is impermissibly vague if it does not ‘give the person of ordinary intelligence a reasonable opportunity to know what is prohibited.’ The First Amendment places a special burden on the government to ensure that restrictions on speech are not impermissibly vague.”
The court disagrees with the FCC’s contention that its 2001 Industry Guidance on indecency along with its subsequent decisions provide enough information on to what will be considered indecent, pointing to apparent inconsistencies in which words or expressions have been considered “patently offensive” by the commission.
The ruling says, “The commission argues that its three-factor ‘patently offensive’ test gives broadcasters fair notice of what it will find indecent. However, in each of these cases, the commission’s reasoning consisted of repetition of one or more of the factors without any discussion of how it applied them. Thus, the word ‘bullshit’ is indecent because it is ‘vulgar, graphic and explicit’ while the word ‘dickhead’ was not indecent because it was ‘not sufficiently vulgar, explicit, or graphic.’ This hardly gives broadcasters notice of how the commission will apply the factors in the future.”
Additionally, the FCC argued that it needed flexibility because the famous list of “seven dirty words” was ineffective, claiming that “broadcasters simply found offensive ways of depicting sexual or excretory organs or activities without using any of the seven words.” The court says, “In other words, because the FCC cannot anticipate how broadcasters will attempt to circumvent the prohibition on indecent speech, the FCC needs the maximum amount of flexibility to be able to decide what is indecent.”
That suggests ” a certain futility in the FCC’s crusade against indecent speech,” the ruling says, “but it does not provide a justification for implementing a vague, indiscernible standard. If the FCC cannot anticipate what will be considered indecent under its policy, then it can hardly expect broadcasters to do so.”
The court also has problems with the FCC’s “bona fide news” exemption for indecent words, “which the FCC has failed to explain except to say that it is not absolute,” and to the commission’s ”artistic necessity exemption,” saying “there is little rhyme or reason” to earlier FCC indecency decisions and that “broadcasters are left to guess whether an expletive will be deemed ‘integral’ to a program or whether the FCC will consider a particular broadcast a ‘bona fide news interview.’”
The judges also say there is “ample evidence in the record that the FCC’s indecency policy has chilled protected speech,” citing decisions by both TV and radio not to air certain material, including a documentary on 9/11 and the reading of a Tom Wolfe novel, because of fears over FCC enforcement. The ruling continues, “The FCC’s application of its policy to live broadcasts creates an even more profound chilling effect,” noting that in the 2003 Billboard Music Awards broadcast, a staff member bleeped one expletive, but “while the person employed to monitor and bleep expletives was bleeping the first, the following two slipped through. Even elaborate precautions will not protect a broadcaster against such occurrences.”
Says the court, “Short of giving up live broadcasting altogether, no system will ever be one hundred percent effective.”
The ruling concludes: “We do not suggest that the FCC could not create a constitutional policy. We hold only that the FCC’s current policy fails constitutional scrutiny.”
FCC Response
FCC Chairman Julius Genachowski responded to the ruling with a brief statement Tuesday afternoon that said, “We’re reviewing the court’s decision in light of our commitment to protect children, empower parents, and uphold the First Amendment.”
