Appeals court panel finds FCC 'fleeting indecency' policy unconstitutional

FCC rules prohibiting indecent speech violate the First Amendment and create a chilling effect on speech, a three-judge appellate panel of the Second U.S. Circuit Court of Appeals in New York said this week.

The ruling, decided July 13, vacates an FCC order finding that FOX and other broadcast networks violated agency prohibitions airing “fleeting expletives.” The panel called the rules “unconstitutionally vague” and said the reach of the rules “goes far beyond the fleeting expletives at issue here.”

In 2004, the FCC revised its policy regarding indecent speech in response to complaints from the public about the utterance of the “F-word” by rock star Bono during the 2003 Golden Globe Awards show. The revision reversed a 30-year policy by making “a single, nonliteral use of an expletive,” also called a “fleeting expletive,” actionable. In the Bono-related case, the FCC found the utterance to be indecent and the broadcast profane.

At the same time, the commission changed its target for fines stemming from violations of its indecency rules by fining individual broadcast licensees airing an utterance rather than simply the broadcaster responsible for the show in which it occurred. The commission applied this stricter policy in four other high-profile instances.

Prior to this week’s ruling, the appeals court had struck down the FCC’s indecency policy because it found it to be “arbitrary and capricious” under the Administrative Procedure Act. The Supreme Court reversed that ruling in a 5-4 vote but declined to address the constitutionality of the policy.

In this week’s appellate court decision, the commission’s indecency policy was found to be unconstitutional “because it is impermissibly vague,” the ruling said. “Indiscernible standards” risk the possibility that the standards will be applied on an ad hoc basis and could lead to suppression of a particular point of view, the ruling said.

“We have no reason to suspect that the FCC is using its indecency policy as a means of suppressing particular points of view. But even the risk of such subjective, content-based decision making raises grave concerns under the First Amendment,” it said.

To illustrate the chilling effect on newsgathering and reporting, the ruling pointed to numerous examples in which local broadcasters declined to air a story or program out of concern over potentially violating the policy.

For instance, a Phoenix TV station dropped live coverage of a memorial for former football player Pat Tillman, who was killed in Afghanistan, because of the language family members used expressing their grief, the ruling said. In another, a Pennsylvania station told the court in an affidavit that it would no longer cover news “direct to air,” except in matters of public safety or convenience, to avoid running afoul of the commission policy.

In another instance, a Vermont station sought to avoid violating indecency prohibitions by refusing to air a political debate because of one candidate’s history of using expletives on-air, the ruling said. The panel also cited the refusal of several CBS affiliates to air a Peabody Award-winning documentary on the Sept. 11, 2001, terror strike, because it contained real audio with “occasional expletives” of firefighters in the World Trade Center.

“If the FCC’s policy is allowed to remain in place, there will undoubtedly be countless other situations where broadcasters will exercise their editorial judgment and decline to pursue contentious people or subjects, or will eschew live programming altogether, in order to avoid the FCC’s fines. This chill reaches speech at the heart of the First Amendment,” the ruling said.

In striking down the FCC’s current indecency policy, the panel said it isn’t suggesting the commission can’t craft a constitutional policy, but rather that “the FCC’s current policy fails constitutional scrutiny.”

Phil Kurz

Phil Kurz is a contributing editor to TV Tech. He has written about TV and video technology for more than 30 years and served as editor of three leading industry magazines. He earned a Bachelor of Journalism and a Master’s Degree in Journalism from the University of Missouri-Columbia School of Journalism.