SALON

Tuesday, Jul 13, 2010 8:45 PM UTC

Court makes a $#%!ing cool ruling on free speech

The 2nd Circuit in Manhattan strikes down the FCC's ludicrously vague indecency policy

By

Topics: Language Police, First Amendment

Hot damn:

A federal appeals court has tossed out a government policy that can lead to broadcasters being fined for allowing even a single curse word on live television.

The 2nd U.S. Circuit Court of Appeals in Manhattan on Tuesday found the policy to be unconstitutional. It says the policy violates the First Amendment.

That’s via the AP. You can also read the full opinion in Fox Television Stations, Inc. v. FCC at the Circuit Court’s decisions page.

This decision has been a long time coming. In 2004, the FCC changed its own rules to state “that a single, nonliteral use of an expletive (a so-called ‘fleeting expletive’) could be actionably indecent” in response to a slew of complaints the agency got after Bono dropped the f-bomb at the 2003 Golden Globe Awards when receiving the award for, I don’t know, the Last Relevant Album by U2.

Since then, the FCC has been regularly and aggressively fining companies for indecency violations — and they’ve multiplied the fines by the number of member stations the word was broadcast on to, vastly increasing their indecent haul. As the Court writes here, “the fine for a single expletive uttered during a broadcast could easily run into the tens of millions of dollars.”

This fleeting expletive fine has always seemed a dumb rule to me. The point of a fine is to make bad behavior a financial nuisance to an individual, thus encouraging a change in said behavior. For instance: I don’t speed in part because I can’t afford the ticket (and also safety concerns, etc.).

This particular fine, though, punished a network for putting on air a broadcaster or entertainer who might let slip an exclamatory and accidental phrase. The only way to guard against that would be a conscious campaign of not only eliminating such language from your own head — difficult — but also from your environment. No more hanging out with salty Uncle Mort. No more watching television after 10 p.m. Cancel the HBO subscription. No movies over PG-13. Don’t want those curse words to slip in. Also, no one invite Bono to any live-filmed awards show ever.

This, it appears, is similar to what the networks who challenged the FCC’s “fleeting expletive” policy argued:

The Networks argue that the FCC’s indecency test is unconstitutionally vague because it provides no clear guidelines as to what is covered and thus forces broadcasters to “steer far wider of the unlawful zone,” rather than risk massive fines.

Even without exaggerating this (as I did) to an Amish-like existence, it’s clear to see how a vague rule about what constitutes offensive language could chill both speech and behavior on live TV. That’s where the First Amendment comes in to play.

It’s also not hard to imagine how this could have an effect on political discourse, not just the random outbursts of peppy pop stars. What if the word “torture,” which has been so very controversial in the media for the last few years, began to be considered indecent because it conjures up disturbing images? What if having a live, televised debate between two presidential candidates became too much of a financial risk for a television station, because one of them might insist on discussing it? Could TV stations be fined for showing photographs of what American service members did to prisoners in Iraq? Would they be willing to take the risk and find out?

The Court ended up agreeing with the networks in the fleeting expletive case. The FCC’s argument was, basically, that it needed flexible (read: vague) rules to keep up with the many different ways that people can say offensive things. The Court responded, “Hell, no”:

The English language is rife with creative ways of depicting sexual or excretory organs or activities, and even if the FCC were able to provide a complete list of all such expressions, new offensive and indecent words are invented every day. For many years after Pacifica, the FCC decided to focus its enforcement efforts solely on the seven “dirty” words in the Carlin monologue. See Infinity Order, 3 F.C.C. Rcd. 930, at ¶ 5 (1987). This strategy had its limitations — it meant that some indecent speech that did not employ these seven words slipped through the cracks. However, it had the advantage of providing broadcasters with a clear list of words that were prohibited. Not surprisingly, in the nine years between Pacifica and the FCC’s abandonment of this policy, not a single enforcement action was brought. This could be because we lived in a simpler time before such foul language was common. Or, it could be that the FCC’s policy was sufficiently clear that broadcasters knew what was prohibited.

It seems clear which of those possibilities — we used to live in simpler times or the FCC used to have its act together — the Court endorses. Good work, Court. Hope it doesn’t get reversed on appeal this time.

 

More Jenn Kepka.

Next Article

Related Stories

More Related Stories

Featured Slide Shows

The week in 10 pics

close X
  • Share on Twitter
  • Share on Facebook
  • Thumbnails
  • Fullscreen
  • 1 of 11
  • Lisa Montgomery embraces her nephew Thursday after a tornado tore apart her home in Cleburne, Texas. The twister killed six people and destroyed entire swaths of the North Texas town.
    Credit: AP/LM Otero

  • Jack McMahon, the defense attorney for abortion doctor Kermit Gosnell, speaks outside the Criminal Justice Center in Philadelphia Tuesday. His client was convicted of killing three babies in his clinic, and will serve multiple life sentences.
    Credit: AP/Matt Rourke

  • A photo taken Monday captures Vice President Joe Biden's response to a Milwaukee second-grader's innovative proposal to end America's epidemic of gun violence. This guy!
    Credit: AP/Jenny Aicher

  • Sen. Rand Paul, R-Ky., flanked by a grouper-eyed Michele Bachmann, addresses the IRS' admission that it targeted Tea Party groups in advance of the 2012 election. In an op-ed for CNN Thursday, the Kentucky senator slammed the president for his faux outrage.
    Credit: AP/Molly Riley

  • Ousted IRS chief Steven Miller is sworn in on Capitol Hill Friday. Miller testified before the House Ways and Means Committee on the extra scrutiny the agency gave conservative groups applying for tax-exempt status.
    Credit: AP/J. Scott Applewhite

  • Attorney General Eric Holder pauses as he testifies on Capitol Hill before the House Judiciary Committee Wednesday. Holder is under fire, among other things, for the Justice Department's gathering of phone records at the Associated Press.
    Credit: AP/Carolyn Kaster

  • O.J. Simpson sits during an evidentiary hearing at Clark County District Court in Las Vegas, Nev., Thursday. Simpson, who is currently serving a nine-to-33-year sentence in state prison for armed robbery and kidnapping, is using a writ of habeas corpus to seek a new trial.
    Credit: AP/Las Vegas Review-Journal/Jeff Scheid

  • Major Tom to ground control: On Sunday astronaut Chris Hadfield recorded the first music video from space, a cover of David Bowie's "Space Oddity."
    Credit: AP/NASA/Chris Hadfield

  • When it rains it pours. President Barack Obama speaks during a news conference Thursday with Turkish Prime Minister Recep Tayyip Erdogan, inexplicably inspiring an #umbrellagate Twitter meme.
    Credit: AP/Jacquelyn Martin

  • A smoke plume rises high above a road block at the intersection of County A and Ross Road east of Solon Springs, Wis., Tuesday. No injuries were reported, but the the wildfire caused evacuations across northwestern Wisconsin.
    Credit: AP/The Duluth News-Tribune/Clint Austin

  • Recent Slide Shows

  • Share on Twitter
  • Share on Facebook
  • Thumbnails
  • Fullscreen
  • 1 of 11

Related Videos

Comments

 3 Comments

Comment Preview

Your name will appear as username

You may use these HTML tags and attributes: <a href=""> <b> <em> <strong> <i> <blockquote>

follow salon

Most Read

Popular on Reddit

links from salon.com

From Around the Web

Presented by Scribol
listener_new_rect The Listener: So long, Sookie Stackhouse

Recommendations