Court knocks down anti-pro­fan­ity rule

Fcc pol­icy for on-air fleet­ing ex­ple­tives is deemed too vague

Austin American-Statesman - - BUSINESS & PERSONAL FINANCE - By Larry Neumeister

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.”

Jacquelyn Martin

FCC Chair­man Julius Ge­na­chowski says his agency will re­view a court’s rul­ing that the FCC’s rule on ex­ple­tives is not suf­fi­ciently de­fined.

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