by Matthew L. Schafer
On Tuesday the United States Court of Appeals for the Second District in New York ruled that the Federal Communications Commission “fleeting expletive” rule for television broadcasters was vague and may produce a chilling effect. As such, they ordered that the rule violates the First Amendment, which means the FCC will not be able to enforce their indecency policy as it stands.
In its decision Tuesday, the court called into question a 2001 policy statement released by the FCC. The statement was originally intended to clarify the evolving FCC standards for indecent content.
“If… the staff determines that a documented complaint meets the subject matter requirements of the indecency definition and the material complained of was aired outside “safe harbor” hours (hours where children are unlikely to be present),” the policy statement said. “Even relatively fleeting references may be found indecent where other factors contribute to a finding of patent offensiveness.”
Broadcasters have long been against regulation and fines for what the FCC calls “Apparent Liability” for fleeting expletives, and objected to a 2004 notice of liability that resulted from fleeting expletives being uttered during the Golden Globe Awards.
The Golden Globes case was the first time the FCC had attempted to fine broadcasters for the airing of fleeting expletives. According to the decision, the FCC issued a record number of fines amounting to $8 million in 2004 departing from its previous “’restrained’ enforcement policy.”
The Tuesday decision stemmed from the original Golden Globes fines, and included Fox, ABC, NBC, CBS, Hearst, and Telemundo among other broadcasters. While the FCC argued that the F-word was “presumptively indecent and profane,” the court disagreed.
In a 3-0 decision, it ruled that although indecent speech was protected under First Amendment rights, the current policy of the FCC “is unconstitutionally vague, creating a chilling effect that goes far beyond the fleeting expletives at issue here.”
In tempering its opinion, the court closed the decision writing, “We do not suggest that the FCC could not create a constitutional policy, [we’re holding] only that the FCC’s current policy fails constitutional scrutiny.”
While the FCC under Republican Chairman Michael Powell, its relatively bridled enforcement of indecent language originated from the 1970s case-the FCC v. Pacifica Foundation. The Pacifica case involved a radio airing of George Carlin’s “Seven Dirty Words.” A father, whose child was present in the car at the air of Carlin’s monologue, filed a complaint with the FCC against Pacifica. After reviewing the complaint, the FCC concluded that the airing of “Seven Dirty Words” was indecent and prohibited.
In Pacifica, the FCC argued, and the Supreme Court agreed, that because of the omniscient presence of broadcasting and the government’s interest in the “well-being of it’s youth,” it could restrict such indecent speech. On Tuesday, however, the court argued that the FCC’s “indiscernible” standards could be enforced in a “discriminate” way.
“Under the current policy, broadcasters must choose between not airing or censoring controversial programs and risking massive fines or possibly even loss of their licenses, and it is not surprising which option they choose,” the court wrote in its Tuesday decision.
Although broadcasters and free speech organizations are applauding the agreement, some advocacy groups are calling the decision misplaced.
“Let’s be clear about what has happened here today: A three-judge panel in New York once again has authorized the broadcast networks unbridled use of the ‘f-word’ at any time of the day, even in front of children,” the Parents TV Council. “The Court substituted its own opinion for that of the Supreme Court…”