Lawyers Take Aim At FCC Flip-Flops
First Amendment attorneys say new indecency rules are sure to be struck down
By Bill McConnell -- Broadcasting & Cable, 3/28/2004 7:00:00 PM
Like sluggers itching to blast batting-practice lobs into the bleachers, free-speech lawyers are hankering for a swing at the government's new ban on the f-word. They say the FCC's new indecency standards are as sweet a target for lawsuits as a hanging curve ball.
"This thing will never stand," says Kurt Wimmer, who practices for Washington firm Covington & Burling.
Wimmer and his colleagues say the ruling is rife with the kind of arbitrary and contradictory legal reasoning that judges hate and are all but certain to strike down. The FCC ruled that rock star Bono's 2003 blurt during an NBC broadcast that winning a Golden Globe was "f***ing brilliant" was indecent, after first declaring, months ago, that it was not. Why the switch? In the current political climate, the FCC contends a bad word is a bad word—even if it's not used to describe a sexual act.
The FCC admits tossing out longstanding precedents that once routinely cut broadcasters slack for "fleeting" incidents of profanity, especially during live shows. "We conclude that any such interpretation is no longer good law," the commission says in its order. By doing that, says a First Amendment lawyer, the FCC "casually terminated live broadcasting as we know it," with little explanation for the dramatic reversal.
Even more astonishing to the lawyers is the exemption for news, which allows airing of mob boss John Gotti's wiretaps but would not extend to literature or other works with social value.
The Gotti exemption, the FCC says, does not suggest that "social or political value would necessarily render use of the f-word permissible." Verbatim readings of James Joyce or James Baldwin "readily come to mind" as works that could lead to sanction if "certain passages" aired, the FCC says.
The heart of the FCC's ruling declares that the f-word is indecent because any use of the word "inherently has a sexual connotation." Lawyers argue that that claim is contradicted by the word's widespread use in society. "It isn't my favorite word, but people use it" in general conversation that has nothing to do with sex, Wimmer says. (Indecent broadcasts, banned between 6 a.m. and 10 p.m., are defined as depictions of sexual or excretory activities in a way that panders or shocks.)
The biggest shocker of all, however, seems to be the FCC decision to use its authority to restrict profanity, which it has never done. In fact, the federal government's last attacks on profanity came in the 1930s, when federal judges upheld a man's conviction for blasphemy. "They have breathed new life into blasphemy law," says an attorney who has First Amendment cases pending. "That may be fine for the Pilgrims, but in modern America, the Supreme Court has put its foot down on that."
As for other naughty words, the FCC says it will decide whether they are profane on a case-by-case basis. That's another legal problem for the commission, the attorneys say, because commissioners have set themselves up as the sole arbiters of what words will be deemed off-limits.
"You may be violating a law that hasn't been invented yet," complains attorney John Crigler. He persuaded the commission a year ago to reverse its fine against a radio station for playing Sarah Jones's rap Your Revolution, an explicit song that was an eloquent if profane attack on the misogyny of gangsta rap. Crigler and others question whether the Jones rap would be as lucky today.
Already, broadcast lawyers are telling clients to rein in their on-air talent. In a memo first reported by Inside Radio, Infinity Radio's Washington lawyer Steve Lerman detailed for general managers words they should make off limits. Stations, he said, should avoid not only such terms as "prick, pussy, titty bar, and hard-on" but also "douche bag and scumbag." Lerman also urged delay systems on sports play-by-play and pregame and postgame shows. Infinity officials wouldn't confirm the report.
FCC Commissioner Michael Copps says the agency's critics wrongly predict the Bono ruling's demise. "The f-word clearly meets the definition of indecency, whether used as an adjective, expletive, intensifier, or any other part of speech." Comparing the FCC to the Pilgrims may be cute, he says, but the commission has not brought religion into its anti-indecency enforcement. "Profanity is not limited to blasphemy."
A dilemma for the FCC critics is finding a party ready to take on the commission. Because NBC wasn't fined for the Bono incident—the ruling applies only to future violations—they doubt the network will challenge the new ruling. Instead, ACLU legislative counsel Marv Johnson predicts the first challenge will come when the FCC actually levies a fine based on the decision.
The ACLU opposes a separate initiative on Capitol Hill that would make performers, as well as broadcast stations, liable for new $500,000 indecency fines.
Sweeping authority granted the FCC under the legislation could have a chilling effect not only on entertainment that pushes the bounds of good taste but on news, sports, and historical dramas as well, warns Dan Jaffe, government-relations chief for the Association of National Advertisers.
"Congress is giving FCC power to make wide decisions that will have sweeping impact on the First Amendment," he says. "Five commissioners may be able to lower the level of programming so that the only shows left are ones only children will find acceptable."
The Supreme Court has not definitively ruled on the FCC's definition of indecency or on the guidelines used to determine which broadcasts cross the line.
But if the FCC revokes licenses of repeat offenders, regardless of the Bono decision's fate, free-speech lawyers predict the day of reckoning is near.
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