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FCC's Censorship of "Indecency" is Unconstitutional

News Update: On June 27, 2011, the Supreme Court granted the government's petition for review of the ruling described here, as well as another Second Circuit decision that struck down an indecency finding against "NYPD Blue" for showing a few moments of female nudity. On June 21, 2012, the Court vacated the FCC's orders on narrow due process grounds, without reaching the First Amendment issues. See The FCC and Indecency: The Supreme Court Decides Not to Decide.

(July 13, 2010) - The U.S. Court of Appeals for the Second Circuit today struck down the Federal Communications Commission's policy for censoring "indecency" on the airwaves, on the ground that the policy is unconstitutionally vague. The ruling comes after four years of litigation challenging the agency's tough new "fleeting expletives" rule, which made even one utterance of a vulgar word presumptively unlawful.

The "fleeting expletives" rule, first announced in 2004, marked a change from the agency's previous, less rigid, censorship policy for indecency in broadcasting. Under the new rule, even one use of a vulgar word during any but late-night hours is presumptively unlawful and exposes a broadcaster to fines of more than $300,000 per incident.

In addition, as the unanimous decision by a three-judge panel of the Second Circuit pointed out, "while the Commission had previously interpreted the maximum fines in the statute as applying on a per-program basis, it began treating each licensee's broadcast of the same program as a separate violation, thereby multiplying the maximum fine the FCC could order for each instance of indecent speech." This combined with Congress's tenfold increase in the maximum fine permitted -from $32,500 to $325,000 - meant that "the fine for a single expletive uttered during a broadcast could easily run into the tens of millions of dollars."

The FCC created the "fleeting expletives" rule in 2004 when it reversed its original finding that the rock star Bono's televised exclamation upon receiving a Golden Globe Award - "this is really, really fucking brilliant" - did not violate its indecency ban because Bono's use of the "f-word" did not refer to "sexual or excretory activities or organs." Announcing its new, harsher rule, the commissioners now said that "the 'F-Word' is one of the most vulgar, graphic, and explicit descriptions of sexual activity in the English language," and therefore "inherently has a sexual connotation." The about-face came in the wake of national uproar over Janet Jackson's "wardrobe malfunction" during the 2004 Super Bowl half-time show just a month earlier.

The FCC soon announced an exception to its new rule, however. After the film "Saving Private Ryan" was broadcast on television, the agency said the film's pervasive cursing was "in context, not patently offensive," and was necessary for the artistic message; therefore, it was not indecent. But in an "Omnibus Order" released in March 2006, the FCC refused to apply the "Saving Private Ryan exception" to a documentary on the Blues, directed by Martin Scorsese and broadcast on PBS stations, because the commissioners thought Scorsese should have substituted politer words for the actual language of the musicians and others interviewed.

Judge Rosemary Pooler, writing for the Second Circuit, pointed out this anomaly in illustrating just how vague and unpredictable the FCC's indecency policy is:

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, a single occurrence of "fucking" in the Golden Globe Awards was "shocking and gratuitous." ... The use of numerous expletives was "integral" to a fictional movie about war, 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."

Similarly, Judge Pooler said, "the 'S-Word' on The Early Show," which the FCC originally found indecent in its Omnibus Order, was later ruled not indecent "because it was in the context of a 'bona fide news interview,' but 'there is no outright news exemption from our indecency rules.' There is little rhyme or reason to these decisions and broadcasters are left to guess whether an expletive will be deemed 'integral' to a program or whether the FCC will consider a particular broadcast a 'bona fide news interview.'"

Judge Pooler was careful not to accuse the FCC of any intentional bias, but she did point out "the disparate treatment" of "Saving Private Ryan" and "The Blues," commenting: "it is hard not to speculate that the FCC was simply more comfortable with the themes in 'Saving Private Ryan,' a mainstream movie with a familiar cultural milieu, than it was with 'The Blues,' which largely profiled an outsider genre of musical experience." Otherwise, why would the FCC decide that the words "fuck" and "shit" "were integral to the 'realism and immediacy of the film experience for viewers' in "Saving Private Ryan,' but not in 'The Blues'"?

The decision went on to document instances of self-censorship resulting from the vagueness of the indecency policy, especially by nonprofit and community broadcasters that cannot afford to risk even one of the FCC's astronomical fines. The court declined to rule on other First Amendment claims, including the argument that the Supreme Court's 1978 decision in FCC v. Pacifica Foundation, upholding the FCC's application of its indecency ban to the comedian George Carllin's satiric "Filthy Words" monologue, no longer makes sense in the context of a dramatically changed media environment where broadcasting is just one of the many pervasive forms of communication available to children.

The FCC will either seek a reversal of the Second Circuit ruling from the Supreme Court, or abandon its "fleeting expletives" rule and return to its prior indecency regime, which was equally vague and unpredictable, if less draconian. It would be to the credit of the Obama Administration, however, if it decided to end the indecency regime entirely and thus put a merciful end to the agency's long history of arbitrary and unpredictable censorship.

For more background on the FCC, indecency, and the "fleeting expletives" case, see Supreme Court Clears Way For Ending FCC Censorship, FCC Faces Judicial Challenges to Its "Indecency" Regime and What is the Fuss About Janet Jackson's Breast? For the friend-of-the-court brief submitted to the Second Circuit by FEPP on behalf of 20 arts, film, TV, and free expression groups in the first round of the Fox v. FCC litigation, see www.fepproject.org/courtbriefs/FoxvFCC.pdf.