The Lawyers for the US Federal Communications Commission (FCC) got a rough ride this week as they returned to the Second Circuit Federal appeals court to argue, once again that their rules to deal with obscenity and indecency in Television and in particular the use of ‘fleeting expletives’ should stand.

The case deals with an appeal by Fox (and several other broadcasters) against the FCC’s expansion of its rules – made in March 2004 - to deal with obscenity and indecency in Television (and the special addition of profanity as a separate category of proscribed speech under the law)

In June 2005, the same court ruled by 2-1 that that “the FCC’s new policy regarding “fleeting expletives” represents a significant departure from positions previously taken by the agency and relied on by the broadcast industry. We further find that the FCC has failed to articulate a reasoned basis for this change in policy. Accordingly, we hold that the FCC’s new policy regarding “fleeting expletives” is arbitrary and capricious under the Administrative Procedure Act. The petition for review is therefore granted, the order of the FCC is vacated, and the matter is remanded to the Commission for further proceedings consistent with this opinion”.

At that time the Court first pointed to the Supreme Court decision in Pacifica (1978) that the FCC could, consistent with the first amendment’s right to free speech, regulate indecent material, but emphasised the limited nature of the ruling saying it did not ’speak to cases involving the isolated use of a potentially offensive word in the course of a [radio] broadcast ‘

When the FCC reversed its initial decision not to sanction NBC for the broadcast of Bono saying “really fucking brilliant” at the 2003 Golden Globes the Commission it moved away from this position stating: “While prior Commission and staff have indicated that isolated or fleeting broadcasts of the “F-Word” such as that here are not indecent or would not be acted upon, consistent with our decision today we concluded that any such interpretation is no longer good law”

According to the court the FCC has failed to show what has changed to warrant their change in position. The FCC claims they are still following Pacifica, but the court found that there was no question that the FCC had changed its policy regarding the treatment of ‘fleeting expletives’ and that it had done so without providing reasoned opinion for doing so. The Court says it cannot find any reasoning why a single expletive now fits within the Commission’s ‘indecency test’ and that the Commission decision is devoid of any evidence that suggests a fleeting expletive is harmful, let alone establishing that it is harmful enough to warrant government regulation.

The Court also rejected the FCC position that even non-literal uses of expletives fall within its indecency definition because it is “difficult (if not impossible) to distinguish whether a word is being used as an expletive or as a literal description of sexual or excretory functions.” According to the court Bono’s exclamation that his victory at the Golden Globe Awards was “really, really fucking brilliant” is a prime example of a non-literal use of the “F-Word” that has no sexual connotation.

The FCC’s order also introduced a new approach to profanity - introducing a new definition (at odds with traditional understanding of the meaning of profanity) - and again failed to provide evidence as to why a separate ban on profanity is necessary.

The U.S. Supreme Court reversed this decision by a 5-4 margin stating that: “None of the Second Circuit’s grounds for finding the FCC’s action arbitrary and capricious is valid. First, the FCC did not need empirical evidence proving that fleeting expletives constitute harmful “first blows” to children; it suffices to know that children mimic behavior they observe. Second, the court of appeals’ finding that fidelity to the FCC’s “first blow” theory would require a categorical ban on all broadcasts of expletives is not responsive to the actual policy under review since the FCC has always evaluated the patent offensiveness of words and statements in relation to the context in which they were broadcast. The FCC’s decision to retain some discretion in less egregious cases does not invalidate its regulation of the broadcasts under review. Third, the FCC’s prediction that a per se exemption for fleeting expletives would lead to their increased use merits deference and makes entire sense.”

The Supremes however, refused to rule on the constitutionality of the rules, absent a ruling on that subject by the Second Circuit, so sent the case back to New York for examination of the constitutional issues.

Judges Rosemary Pooler, Pierre Level and Peter Hall the same three judges that heard the case the first time around at the second Circuit all seemed pretty clear during oral arguments which side of the argument they were on, and few in the courtroom expect anything other than a unanimous ruling that the FCC rules are unconstitutionally vague.

When an FCC lawyer argued that the FCC’s policy was designed to “protect children” and that ratings and scheduling were ineffective in doing so, one judge, Pierre Leval – the one judge who had sided with the FCC in the first round of this case - asked, “What are you protecting children from?” A point followed up by Judge Hall who asked how the FCC could justify this stance whilst at the same time admitting it had a different rule for news programming, and Judge Pooler who questioned whether or not the first amendment allowed the FCC scope to –in their own words - “bend over backwards” to respect the sanctity of news and editorial judgment.

Hall, getting to the crux of the issue asked “How do the children figure this out? They are still hearing the same words.”

The Judges were also less than reassured by the FCC lawyers of just what would be allowable on TV. Judge Leval asked if he, as a broadcaster, could run a show about preserving virginity until marriage that included explicit references to sex, and was less than reassured by the response from the FCC’s lawyer of “I suspect you can,” leading Judge Pooler to intervene, commenting “You know what a good lawyer will say — ‘When in doubt, don’t run it.’ That’s the chill.”

It looks like the Supreme Court could be seeing this case again very soon – if they decide to take it – and I would expect this time they will side with the Second circuit and hand victory, rightly, in my view, to the broadcasters.