Federal Court Boots FCC Indecency Rules

NEW YORK: A federal appeals court threw out the Federal Communication Commission’s indecency rules this week. A three-judge panel with the U.S. Court of Appeals for the Second Circuit said the FCC’s indecency policy “violates the First Amendment because it is unconstitutionally vague, creating a chilling effect that goes far beyond the fleeting expletives at issue here.” The court effectively invalidated the FCC’s indecency rules.

The case involves an FCC crackdown on spontaneous cursing by celebrities on TV, reaching back to 2002 when Cher dropped an F-bomb on Fox’s live telecast of the “Billboard Music Awards.” The FCC, under the direction of former Chairman Kevin Martin issued the ruling against fleeting expletives in an indecency dragnet generating $4.5 million in fines.

Under federal law, content is considered indecent if it describes or depicts “sexual or excretory organs or activities… [and] the broadcast must be patently offensive as measured by contemporary community standards for the broadcast medium.”

Martin’s predecessor, Michael Powell, had waved off Bono’s use of an exclamatory F-word on the 2003 Golden Globe Awards because there was no sexual connotation. Though Fox was not fined, it challenged the FCC’s censures as violations of the First Amendment. CBS and ABC were also censured and joined the lawsuit.

The Second Circuit Court sided with Fox, et al, on the premise the FCC hadn’t provided proper notice for the policy change between Powell’s and Martin’s tenures. It did not take up the constitutional question. The Supreme Court ruled in favor of the FCC in April 2009, and directed the lower court to rule on the First Amendment challenge. Today’s ruling is the result.

The 32-page ruling, written by Judge Rosemary Pooler, addresses how both media and culture have changed since broadcast indecency rules were established. The rules rest in part on broadcast being the single-most pervasive media in the country, which is no longer the case. The judges cited the availability of the V-chip, allowing parents to block content, and took issue with the FCC for deeming some vulgarities censurable while letting others go.

“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,” Pooler wrote.

The court said that the FCC’s application of indecency rules “chilled a vast amount of protected speech dealing with some of the most important and universal themes in art and literature. Sex and the magnetic power of sexual attraction are surely among the most predominant themes in the study of humanity since the Trojan War. The digestive system and excretion are also important areas of human attention. By prohibiting all ‘patently offensive’ references to sex, sexual organs, and excretion without giving adequate guidance as to what ‘patently offensive’ means, the FCC effectively chills speech, because broadcasters have no way of knowing what the FCC will find offensive.”

The judges concluded by saying their decision didn’t suggest the FCC couldn’t create a constitutional indecency policy, but rather that the one in place “fails constitutional scrutiny.”

Responding on behalf of the National Association of Broadcasters, Dennis Wharton issued the following statement: “NAB supports today’s appellate court decision... We believe that responsible decision-making by network and local station executives, coupled with program-blocking technologies like the V-chip, is far preferable to government regulation of program content.”

FCC Chairman Julius Genachowski said the FCC was “reviewing the court’s decision in light of our commitment to protect children, empower parents and uphold the First Amendment.” --Deborah D. McAdams