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FCC faces risks if it chooses to appeal indecency case

After a three-judge appeals court panel ruled last week that a Federal Communications Commission policy on unscripted expletives during live broadcasts creates a “chilling effect” on free speech, a number of questions began to surface at the FCC.

Most agree that the court decision was a major victory for broadcasters and a complete reversal of the Bush-era communications policy, but if the FCC appeals the decision to the U.S. Supreme Court, there’s a risk that the commission could lose all control over broadcast content.

The FCC is now “reviewing the court’s decision in light of our commitment to protect children, empower parents and uphold the First Amendment,” said Julius Genachowski, the commission’s chairman.

An appeal would take the Supreme Court back to a 1978 ruling in the FCC vs. the Pacifica Foundation. That decision upheld the FCC’s finding that George Carlin’s classic “seven dirty words” radio monologue was indecent. At that time, the court left open the question of whether the use of “an occasional expletive” could be punished.

In 2009, in another decision involving FCC content authority, both Justices Clarence Thomas, on the right, and Ruth Bader Ginsburg, on the left, indicated they had questions about the First Amendment issues in the FCC’s indecency policy and whether existing standards were still relevant.

The appeals court picked up on that theme in last week’s decision, noting that the media landscape is much different in 2010 than it was in 1978.

“Technological changes have given parents the ability to decide which programs they will permit their children to watch,” the appeals court said. Noting that it was bound by the Supreme Court’s Pacifica decision, the court said that it nevertheless wondered why broadcasters were still subject to restrictions that, in the case of cable television, would be found to violate the First Amendment.

Before 2004, the FCC consistently held the notion that occasional, spontaneous use of certain words that were otherwise prohibited did not violate its indecency standards. But as complaints multiplied over celebrity obscenities and the Janet Jackson “wardrobe malfunction” at the 2004 Super Bowl, the FCC, with then chairman Michael K. Powell, began a crackdown. The FCC tightened its standards.

Congress followed, by increasing the potential fine for broadcasters for indecency violations tenfold, to up to $325,000 per episode. However, pay television broadcasters (cable and satellite TV services) were not affected, allowing them far greater range in free speech.

The appeals court ruling last week found the FCC policy was “unconstitutionally vague” and created a “chilling effect” that violated the First Amendment protection of free speech.

“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,” U.S. Circuit Judge Rosemary S. Pooler wrote in last week’s decision. “Indeed, there is ample evidence in the record that the FCC’s indecency policy has chilled protected speech.”

Fox Broadcasting Co., one of the broadcasters appealing the case, cheered the appellate ruling.

“We have always felt that the government’s position on fleeting expletives was unconstitutional,” the network said. “While we will continue to strive to eliminate expletives from live broadcasts, the inherent challenges broadcasters face with live television, coupled with the human element required for monitoring, must allow for the unfortunate isolated instances where inappropriate language slips through.”