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FCC Proposes Easing Up on Censorship of "Indecency"

(April 12, 2013) - Almost a year ago, the Supreme Court ducked the question of whether the new censorship standard announced by the Federal Communications Commission in 2004, which presumptively banned even "fleeting expletives" from the airwaves, violated the First Amendment. Last week, the agency issued a request for comments on whether it should roll back its controversial "fleeting expletives" rule and return to a policy that only punishes "deliberate and repetitive use" of vulgar words "in a patently offensive manner."

The proposed change, if enacted, will be welcomed by both the broadcast industry and free-speech advocates, although the standard of "patently offensive" would continue to give FCC censors unbridled discretion to punish programs that offend them, and to give writers, directors, and producers little guidance as to what will incur the agency's displeasure.

The FCC's call for comments also asked whether it should "treat isolated (non-sexual) nudity the same as or differently than isolated expletives." And it noted that its inquiry was designed to ensure that its rules against "indecency" in broadcast radio and television "are fully consistent with vital First Amendment principles."

The proposed changes signal a willingness by the FCC to resist the political pressures that resulted in its adoption of the fleeting expletive rule in the first place: the brouhaha that followed the infamous Janet Jackson "wardrobe malfunction" at the February 2004 Super Bowl half time show. The larger question remains, however, whether any censorship of constitutionally protected but "indecent" speech on the airwaves can be reconciled with the First Amendment, particularly at a time when other electronic media - cable TV, satellite radio, and the Internet - are not subject to the FCC's anti-indecency rules.

FCC v. Pacifica, the 1978 Supreme Court precedent from which the agency's power to punished constitutionally protected speech on the airwaves derives, rested on a rationale that was weak when it was announced and is untenable today: the "uniquely pervasive" nature of broadcasting and its "unique accessibility" to children.

For background, see "The FCC and Indecency: The Supreme Court Decides Not to Decide" and "FCC's Censorship of Decency is Unconstitutional.

Click here for the FCC's call for comments.