Court knocks down anti-profanity rule
Fcc policy for on-air fleeting expletives is deemed too vague
NEW YORK — A federal appeals court on Tuesday tossed out a government policy that can lead to broadcasters being fined for allowing even a single curse word on live television, concluding that the rule was unconstitutionally vague and had a chilling effect on broadcasters.
The 2nd U.S. Circuit Court of Appeals in Manhattan struck down the 2004 Federal Communications Commission policy, which said that profanity referring to sex or excrement is always indecent.
“By prohibiting all ‘patently offensive’ references to sex, sexual organs and excretion without giving adequate guidance as to what ‘patently offensive’ means, the FCC effectively chills speech, because broadcasters have no way of knowing what the FCC will find offensive,” the appeals court wrote.
“To place any discussion of these vast topics at the broadcaster’s peril has the effect of promoting wide self-censorship of valuable material which should be completely protected under the First Amendment,” it added.
The court said the FCC might be able to craft a policy that does not violate the First Amendment.
In a statement, FCC Chairman Julius Genachowski said his agency is “reviewing the court’s decision in light of our commitment to protect children, empower parents and uphold the First Amendment.”
Andrew Jay Schwartzman, policy director of Media Access Project, which joined the case on behalf of musicians, producers, writers and directors, said, “The score for today’s game is First Amendment 1, censorship 0.”
The FCC’s fleeting expletive policy was put in place after a January 2003 NBC broadcast of the Golden Globe Awards show, in which U2 lead singer Bono uttered the phrase “f------brilliant.” The FCC said the F-word in any context “inherently
has a sexual connotation” and can lead to enforcement.
The ruling by the threejudge panel came after the Supreme Court last year upheld the policy on procedural grounds and returned it to the 2nd Circuit for consideration of constitutional arguments.
In Tuesday’s ruling, Judge Rosemary Pooler wrote for the three-judge panel, describing the evolution of the FCC’s rules for what it regarded as indecent speech.
She recounted how the FCC first exercised its authority to regulate speech it considered indecent in 1975 after the airing of comedian George Carlin’s expletive-laden “Filthy Words” monologue broadcast on the radio at 2 o’clock in the afternoon.
The FCC pursued a restrained enforcement policy afterward, limiting its enforcement powers to the seven specific words in the Carlin monologue, she said.
In 1987, the FCC ended its focus on specific words, adopting a “contextual approach to indecent speech,” Pooler said.
The FCC changed its policy in 2004, responding to Bono’s outburst, by saying for the first time that a single use of an expletive — a so-called fleeting expletive — could result in a fine, she wrote.
The commission then expanded its enforcement efforts and began issuing record fines for indecency violations by treating each licensee’s broadcast of the same program as a separate violation rather than a single violation for each program, Pooler said.
In citing the confusion caused by the FCC’s current policy, Pooler wrote that the FCC found some commonly used expressions to be indecent, while others, such as “up yours,” were found not to be patently offensive.
“The English language is rife with creative ways of depicting sexual or excretory organs or activities,” she wrote. “Even if the FCC were able to provide a complete list of all such expressions, new offensive and indecent words are invented every day.”
FCC Chairman Julius Genachowski says his agency will review a court’s ruling that the FCC’s rule on expletives is not sufficiently defined.