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Supreme Court Will Review "Fleeting Expletives" Case
(March 17, 2008) - The Supreme Court today agreed to decide a case that will have major impact on free speech over the airwaves. The Court granted the Federal Communication Commission's request that it review last year's decision by the U.S. Court of Appeals for the Second Circuit in Fox Television v. FCC, which struck down the FCC's harsh new "fleeting expletives" rule.
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 broadcast station to fines of more than $300,000.
The FCC created the "fleeting expletives" rule 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 any variant of the "f-word" inherently has a sexual connotation. The about-face came in the wake of national uproar over the Janet Jackson "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.
In the "Omnibus Order," the commission also found that Detective Sipowitz's use of the term "bullshit" on NYPD Blue was indecent and profane - though not his use of the word "dickhead." And in the two cases that were at issue before the Second Circuit, the agency condemned as indecent the phrase "Fuck 'em" (uttered by Cher during the 2002 Billboard Music Awards), and a comment by Nicole Richie during the same program the following year: "Have you ever tried to get cow shit out of a Prada purse? It's not so fucking simple."
The Second Circuit, in a 2-1 decision, found that the "fleeting expletives" rule is "arbitrary and capricious," in violation of the federal Administrative Procedure Act, because the FCC gave no reasoned rationale for its change from a policy of censoring expletives such as "fuck" or "shit" only when they are pervasive in a radio or TV broadcast.
The most important part of the Second Circuit decision, however, was lengthy "dicta" (that is, statements not necessary to the result in the case). Warning the FCC not to simply invent additional rationales for its anti-indecency rules, Judges Rosemary Pooler and Peter Hall opined that the agency's entire censorship scheme is likely unconstitutional: its standards are too discretionary; and, given the pervasiveness of the words "fuck" and "shit," and their many variants, in contemporary society, it would not likely be able to show a "compelling state interest" in censoring them.
It was largely this "dicta" that the FCC pointed to in its petition asking the Supreme Court to review the case. The FCC argued that it could no longer do its job since the Court of Appeals had basically said that any new rule it came up with would probably be unconstitutional. The agency pointed to the Supreme Court's 1978 decision in FCC v. Pacifica Foundation, which approved its censorship of broadcast indecency. The FCC argued that that the Court of Appeals basically deprived it of the discretion to decide what is "indecent," in context, which the Supreme Court gave it 30 years ago in Pacifica.
The Pacifica case involved comedian George Carlin's "Filthy Words" monologue, a satirical look at linguistic taboos which made repeated use of vulgar words. In a narrow and fractured ruling, the Supreme Court in Pacifica said that the FCC could censor constitutionally protected but indecent speech on the airwaves because radio and TV invade the home before people have time to turn off the set, and vulgar language could enlarge a child's vocabulary "in an instant."
It is unclear whether the justices who voted to grant review in this case want to affirm the FCC's new, harsher approach to censoring "indecency," or, alternatively, to revisit the Court's 1978 Pacifica decision. Among the arguments made by Fox Television and others who challenged the FCC's fleeting expletives rule was that the media landscape has changed so much since 1978 that broadcasting is no longer distinguishable from cable and other technologies that enjoy full First Amendment protection.
The Second Circuit agreed, noting also that ten years ago in Reno v. ACLU, the Supreme Court struck down an indecency ban for the Internet which used the same terms as the FCC's indecency definition: "patently offensive as measured by contemporary community standards." The Second Circuit said that the standard is hopelessly vague, and that the FCC's frequent flip-flops made it unpredictable, with resulting chilling effects on valuable programming.
Update: On April 28, 2009, the Supreme Court reversed the Second Circuit on the statutory issue, but left the door open for a ruling that the FCC's current indecency regime violates the First Amendment. See "Supreme Court Clears the Way for Ending FCC Censorship of the Airwaves." On July 13, 2010, the Second Circuit ruled that the FCC's indecency policy is unconstitutionally vague, thereby failing to put broadcasters on notice of what is banned, and chilling free expression. See "FCC's Censorship of Indecency is Unconstitutional."
On June 27, 2011, the Supreme Court granted the government's petition for review of that ruling, 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.
For more background on the FCC, indecency, and the "fleeting expletives" case, see 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 Fox v. FCC, see www.fepproject.org/courtbriefs/FoxvFCC.pdf. For the brief we submitted to the Supreme Court, click here.