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

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

Published July 13, 2010 8:45PM (EDT)

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.


By Jenn Kepka

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