Loss for the FCC

The US Second Circuit Court of Appeals ruled today in the case of Fox et. al. vs. The FCC. Finally, a victory for the broadcasters.
The two incidents in question were:

- 2002 Billboard Music Awards: In her acceptance speech, Cher stated:
“People have been telling me I’m on the way out every year, right? So
fuck ‘em.”

- 2003 Billboard Music Awards: Nicole Richie, a presenter on the show,
stated: “Have you ever tried to get cow shit out of a Prada purse? It’s not
so fucking simple.”

To understand the decision, first we must understand the FCC definition of indecency (taken directly from the FCC Website):

Indecency findings involve at least two fundamental determinations. First, the material alleged to be indecent must fall within the subject matter scope of our indecency definition: that is, the material must describe or depict sexual or excretory organs or activities. . . . Second, the broadcast must be patently offensive as measured by contemporary community standards for the broadcast medium.


The decision is about the uses of the word fuck on TV. The Decision frequently references the Bono Golden Globes "incident."(NBC broadcast the Golden Globes that year) Bono, while accepting his award, said "This is really, really, f------ brilliant," but the FCC originally ruled that it was not indecent because he was not describing "sexual or excretory organs or activities."

Then months later (after Janet Jackson and the Super Bowl), the FCC reversed its decision to say that what Bono did was actually indecent and profane. They didn't fine NBC or its affiliates, but it still was not a very good sign for the TV business.

The Networks (Fox CBS and NBC) argued that:
1) The reversal of policy (see Bono above) is a major shift without explanation
2) The way the FCC interprets "Community Standards" is vague
3) The FCC’s definition of “profane” is contrary to law
4) The FCC’s indecency regime is unconstitutionally vague
5) The FCC’s indecency test permits the Commission to make subjective determinations about the quality of speech in violation of the First Amendment
6) The FCC’s indecency regime is an impermissible content-based regulation of speech that violates the First Amendment


On the first argument, the court basically said that the FCC was wrong to change its position without articulating it correctly. "While the FCC is free to change its previously settled view on this issue, it must provide a reasoned basis for that change."

NBC, just so you know, used the argument that sometimes even the top leaders of government use words in that way, and the Court agreed. (and it cited the "President Bush’s remark to British Prime Minister Tony Blair that the United Nations needed to “get Syria to get Hezbollah to stop doing this shit” and Vice President Cheney’s widely-reported “Fuck yourself” comment to Senator Patrick Leahy on the floor of the U.S. Senate").

The Court then declined to rule about arguments 4 thru 6 because of "A fundamental and longstanding principle of judicial restraint requires that courts avoid reaching constitutional questions in advance of the necessity of deciding them." Basically the constitutional questions were not central to the case, but they still did comment on them. ("Because we doubt that the Networks will refrain from further litigation on these precise issues if, on remand, the Commission merely provides further explanation with no other changes to its policy, in the interest of judicial economy we make the following observations")

The Observations were as follows. All speech covered by the FCC's Idencency policy is "fully protected" by the First Amendment.
Also, the court questioned whether the FCC’s indecency test can
survive First Amendment scrutiny. They said:

We are sympathetic to the Networks’ contention that the FCC’s indecency test is undefined, indiscernible, inconsistent, and consequently, unconstitutionally vague. Although the Commission has declared that all variants of “fuck” and “shit” are presumptively indecent and profane, repeated use of those words in “Saving Private Ryan,” for example, was neither indecent nor profane. And while multiple occurrences of expletives in “Saving Private Ryan” was not gratuitous, Saving Private Ryan, a single occurrence of “fucking” in the Golden Globe Awards was “shocking and gratuitous.”

Parental ratings and advisories were important in finding “Saving Private Ryan” not patently offensive under contemporary community standards, Saving Private Ryan, but irrelevant in evaluating a rape scene in another fictional movie. The use of numerous expletives was “integral” to a fictional movie about war, Saving Private Ryan, but occasional expletives spoken by real musicians were indecent and profane because the educational purpose of the documentary “could have been fulfilled and all viewpoints expressed without the repeated broadcast of expletives,”(finding Martin Scorsese’s PBS documentary “The Blues: Godfathers and Sons” indecent)

The decision then goes on to talk about the indecency test, saying

It appears that under the FCC’s current indecency regime, any and all uses of an
expletive is presumptively indecent and profane with the broadcaster then having to demonstrate to the satisfaction of the Commission, under an unidentified burden of proof, that the expletives were “integral” to the work. In the licensing context, the Supreme Court has cautioned against speech regulations that give too much discretion to government officials.

This is as close to a complete victory for the opponents of censorship as you can get. The court did not actually rule on these observations, but it sets a great precedent for any further challenge for the networks. Take that, FCC and the Parents Television Council.





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