2nd Circuit: FCC Can't Fine Networks for Fleeting Expletives

^{See also: Free Speech 101}

On Monday, the 2nd Circuit Court of Appeals ruled 2-1 that the FCC's new guidelines fining broadcast companies for fleeting expletives, such as Bono's remark at the 2003 Golden Globes ("This is really f--king brilliant"), are excessively arbitrary and more than likely will not pass constitutional muster. From the ruling:

[W]e question whether the FCC's indecency test can survive First Amendment scrutiny. For instance, 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 'f--k' and 'sh--' 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 ... a single occurrence of 'f--king' in the Golden Globe Awards was 'shocking and gratuitous' ... We can understand why the Networks argue that the FCC's 'patently offensive as measured by contemporary community standards' indecency test coupled with its 'artistic necessity' exception fails to provide the clarity required by the Constitution, creates an undue chilling effect n free speech, and requires broadcasters to 'steer far wider of the unlawful zone' ...

We also note that the FCC's indecency test raises the separate constitutional question of whether it permits the FCC to sanction speech based on its subjective view of the merit of that speech. 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 a profanity-ridden (seriously) letter, FCC Chairman Kevin Martin suggested that the solution to the question of broadcast indecency may rest in requiring cable and satellite providers to offer a la carte programming, as Republican legislators have recently proposed. Wait, what?

Permitting parents to have more choice in the channels they receive may prove to be the best solution to content concerns. All of the potential versions of a la carte would avoid government regulation of content while enabling consumers, including parents, to receive only the programming they want and believe to be appropriate for their families. Providing consumers more choice would avoid the First Amendment concerns of content regulation, while providing real options for Americans.

All well and good, but what on Earth does any of this have to do with broadcast indecency regulation? The FCC has no jurisdictional authority over the content of cable and satellite programming, and cable and satellite companies don't have the power to block broadcast channels.

At any rate, FCC leaders are presently attempting to decide whether to appeal the case to the U.S. Supreme Court, and risk having existing content regulation standards struck down altogether, or design new, less arbitrary standards to meet the criteria set by the ruling. It is worth noting that the FCC has not actually leveled any indecency fines since May of 2006, nor has Bono dropped the F-bomb at any subsequent live network award ceremonies. Maybe they've negotiated a truce.

Television programming content is unlikely to be affected significantly by any of this; advertising money, and not FCC regulation, has traditionally restricted the content of broadcast television. The real beneficiaries will be small local news and radio stations, which may finally be able to conduct live interviews again without having to worry about a $325,000-per-expletive fine.

Read more:

• Court Ruling Propels FCC Indecency Debate (New York Times)
• Text of Decision by the U.S. Court of Appeals [Adobe PDF]
• Statement by Chairman Martin on 2nd Circuit Court of Appeals Indecency Decision [Adobe PDF]