The Federal Communication Commission got a bit of a kicking yesterday when the Second Circuit Court of Appeals handed down its decision in Fox Television v. FCC
The case dealt with an appeal by Fox (and several other broadcasters) against the FCC’s expansion of its rules 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 Court decided the case on narrow ground, and ruled 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”.
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 “this defies any commonsense understanding of these words, which, as the general public well knows, are often used in everyday conversation without any “sexual or excretory” meaning. 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.
In a dissenting view Judge Leval found that the FCC had presented a reasoned – if not necessarily compelling reason – for its change of policy and that whilst one could reasonably disagree with its new position, ” its explanation – at least with respect to the F-Word – is not irrational, arbitrary, or capricious”
So what happens now? Well, the FCC just needs to re-write their order with a better explanation of their policy change. As the court concludes ” we are doubtful that by merely proffering a reasoned analysis for its new approach to indecency and profanity, the Commission can adequately respond to the constitutional and statutory challenges raised by the Networks… While we fully expect the Networks to raise the same arguments they have raised to this court if the Commission does nothing more on remand than provide additional explanation for its departure from prior precedent, we can go no further in this opinion”.
So, don’t expect this to be the last you hear on this one.