IP Democracy: Court Tells FCC to Go F*ck Itself in Indecency Ruling

The U.S. Court of Appeals for the Second Circuit in New York struck a major blow for free speech today when it seriously smacked down the FCC’s policy of levying fines against broadcasters for airing “fleeting expletives.” More importantly, the court threw a hand grenade at the entire regulatory apparatus that regulates indecency and obscenity on television, casting into doubt the future of government restrictions on broadcast content.

By way of background, the FCC hatched a new set of content restrictions following Bono’s famous acceptance speech at the Golden Globe Awards show in January 2003 (“this is really, really f*cking brilliant” the singer-statesman-icon said.) Although the Commission at first rejected claims that this “fleeting expletive” was indecent, under political pressure the agency backpedaled five months later, ruling that any variant of the “F-word” is inherently sexual and therefore indecent. In gerryrigging the rationale for this and later decisions the FCC relied on a new subcategory of indecent or obscene content — namely “profane” content.

Although freighted with religious overtones, the term “profane” can go beyond that which is blasphemous, the FCC argued in justifying its ban on F-words and S-words. (The Commission later identified other words, such as sh*t, that are also indecent and profane and subject to substantial financial penalties if uttered over public airwaves.)

After a series of unsuccessful appeals at the FCC, several broadcasters, including Fox, ABC and CBS, took their case to the appeals court, which thoroughly trashed the FCC’s rationale, or lack thereof, for 1. suddenly banning fleeting expletives after 30 years of enforcing its indecency and obscenity rules, 2. for relying on the newly constructed “profane” category and 3. for failing to explain just how fleeting expletives harm the public’s welfare. Writing for the majority in the 2 to 1 decision, Judge Rosemary S. Pooler said the

Commission sets forth no independent reasons that would justify its newly-expanded definition of “profane” speech, aside from merely stating that its prior precedent does not prevent it from setting forth a new definition…Furthermore, the Commission fails to provide any explanation for why this separate ban on profanity is even necessary. Finally, the Commission provides no explanation of what harm this separate enforcement against profane speech addresses that is not already addressed by the FCC’s indecency and obscenity enforcement…Accordingly, we find that the FCC’s new policy regarding “fleeting expletives” fails to provide a reasoned analysis justifying its departure from the agency’s established practice.

But that’s not the best part. Because the court found that the FCC acted in an arbitrary and capricious manner, and therefore violated the Adminstrative Procedures Act, the rules are overturned. But various parties, including the broadcasters themselves, also argued that all these content restriction regulations violate the First Amendment right to free speech and should be banned altogether.

While claiming to “refrain from deciding the various constitutional challenges,” the court nevertheless does almost precisely that. It offers a robust analysis of why the FCC’s indecency and obscenity regulations violate the First Amendment.

Those regulations were developed when broadcasters dominated the TV landscape. But, given the rise of cable and satellite and v-chip technologies, it’s hard to see why government regulators get to censor content anymore at all, the court argued.

The proliferation of satellite and cable television channels—not to mention internet-based video outlets—has begun to erode the “uniqueness” of broadcast media, while at the same time, blocking technologies such as the V-chip have empowered viewers to make their own choices about what they do, and do not, want to see on television…The FCC is free to regulate indecency, but its regulatory powers are bounded by the Constitution.

The court technically remanded, or gave back, the decision to the FCC so that it can craft some new rules that aren’t arbitrary and capricious. But, as the decision’s lengthy sections on the First Amendment underscore, the court doesn’t think the FCC will ever be able to overcome the constitutional questions.

We are doubtful that by merely proffering a reasoned analysis for its new approach to indecency and profanity, the Commission can adequately respond to the constitutional and statutory challenges raised by the Networks.

Another very fun part of the decision: the court acknowledges the irony of banning F-words and S-words on TV when U.S. leaders use them all the time.

Similarly, as NBC illustrates in its brief, in recent times even the top leaders of our government have used variants of these expletives in a manner that no reasonable person would believe referenced ‘sexual or excretory organs or activities.’ (citing President Bush’s remark to British Prime Minister Tony Blair that the United Nations needed to ‘get Syria to get Hezbollah to stop doing this sh*t’ and Vice President Cheney’s widely-reported ‘F*ck yourself” comment to Senator Patrick Leahy on the floor of the U.S. Senate).

Posted by Cynthia Brumfield on June 4, 2007 6:08 PM to IP Democracy