“So fuck the FCC / Fuck the FBI /Fuck the CIA / Livin in the motherfuckin USA” - Steve Earle – F the CC

The U.S. Court of Appeals for the 2nd Circuit in New York has ruled that the U.S. Federal Communications Commission’s (FCC) indecency policy is unconstitutionally vague and could create a chilling effect beyond “fleeting expletives” heard on broadcasts.

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)

The same court, in 2005, 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”

The 2nd Circuit argued ruled the FCC had failed to show why this was no longer good law and what had changed to warrant this new position on ’single’ fleeting expletives. The case was appealed to the Supreme Court who 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 behaviour 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 Supreme Court 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. The 3 Judge panel has now done so an unanimously concluded “We now hold that the FCC’s policy violates the First Amendment because it is unconstitutionally vague, creating a chilling effect that goes far beyond the fleeting expletives at issue here”.

What is an unconstitutionally vague law/rule? According to US law something is impermissibly vague if it does not “give a person of ordinary intelligence a reasonable opportunity to know what is prohibited” In this case the broadcaster argued the FCC’s indecency test was not one that made clear what was prohibited. They pointed to the Supreme Court’s decision to cut down the Communications Decency Act in Reno v ACLU where the law was found unconstitutionally vague with its use of general undefined terms such as ‘indecent’ and ‘patently offensive’, must also apply here where the identically used terms are applied.

The Court found there was additional guidance that meant the Reno decision in and of itself didn’t mean they should find against the FCC. However it did find the indecency policy impermissibly vague, pointing out that according the FCC ‘Bullshit’ – as used in an episode of NYPD Blue is indecent because it is ‘vulgar, graphic and explicit’, but ‘dickhead’ was not indecent because it was ‘not sufficiently vulgar, explicit, or graphic.’ No explanation is provided as to why, for example multiple occurrences of variants of the word ‘Fuck’ are not indecent and profane in Saving Private Ryan, but were in musical documentary The Blues.

The Court summed its vagueness argument by pointing to the FCC’s own lawyer during oral arguments whose answer to a question on whether a discussion programme dealing with the dangers of pre-matital sex aimed at teenagers would be permitted under the FCC rules replied ‘I suspect it would’. It followed this observation by listing programmes that had not been broadcast or rebroadcast and scripts that had been changed in fear of failing foul of the FCC rules.

The court concluded: ” the absence of reliable guidance in the FCC’s standards chills 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. To place any discussion of these vast topics at the broadcaster’s peril has the effect of promoting wide self-censorship of valuable material which should be completely protected under the First Amendment.”

The FCC can appeal the ruling to either the full court of the 2nd Circuit or take the case back to the Supreme Court. It could also just choose the rewrite its indecency rules, and then – in all likihood – end up starting this process again with new challenges to its constitutionality. I feel it is unlikely to do the latter until a decision is handed down in a loosely related case being played out in the 3rd Circuit court in Philadelphia over the infamous 2004 Super Bowl halftime show, in which CBS broadcast the ‘wardrobe malfunction’ which saw one of Janet Jackson’s breasts was exposed for about half a millisecond. An appeal to the full 2nd Circuit and/or Supreme Court seems more likely, although in both cases I think the broadcasters will succeed.