Appeals Court Throws Out FCC's Indecency Policy

Calls enforcement "unconstitutionally vague and chilling"

By John Eggerton -- Broadcasting & Cable, 7/13/2010 1:15:32 PM

The Second Circuit Court of Appeals has thrown out the FCC's indecency enforcement policy as unconstitutionally vague and chilling.

The Supreme Court had overturned the Second Circuit's original decision that the policy was an arbitrary and capricious change in policy and remanded the case back to the court for a second look.

This time, a three-judge panel of the court said the FCC's decision finding swearing on awards shows on Fox indecent is impermissibly vague, which means it chills speech. "Under the current policy, broadcasters must choose between not airing or censoring controversial programs and risking massive fines or possibly even loss of their licenses," said the court, "and it is not surprising which option they choose. Indeed, there is ample evidence in the record that the FCC's indecency policy has chilled protected speech."

The decision could tee up the FCC's entire indecency enforcement policy for Supreme Court review.

"We now hold that the FCC's policy violates the First Amendment because it is unconstitutionally vague, creating a chilling effect that goes far beyond the fleeting expletives at issue here. Thus, we grant the petition for review and vacate the FCC's order and the indecency policy underlying it."

The court did not weigh in on the limits of the FCC's authority under the Supreme Court's Pacifica decision, which buttressed the FCC's ability to regulate indecency. That call will be left for the High Court if/when it gets to hear the case.

"The FCC interprets Pacifica as permitting it to exercise broad regulatory authority to sanction indecent speech. In its view, the Carlin monologue was only the most extreme example of a large category of indecent speech that the FCC can constitutionally prohibit," said the court. "Although, the Remand Order also found the broadcasts in question "profane," the FCC has abandoned that finding for the purposes of this appeal and has relied solely on its finding of indecency. We therefore do not address its profanity finding further. The Networks, on the other hand, view Pacifica as establishing the limit of the FCC's authority. In other words, they believe that only when indecent speech rises to the level of "verbal shock treatment," exemplified by the Carlin monologue, can the FCC impose a civil forfeiture. Because Pacifica was an intentionally narrow opinion, it does not provide us with a clear answer to this question. Fortunately, we do not need to wade into the brambles in an attempt to answer it ourselves. For we conclude that, regardless of where the outer limit of the FCC's authority lies, the FCC's indecency policy is unconstitutional because it is impermissibly vague."

The court took into account changes in the marketplace, saying that broadcaster was only one voice in many, and that there were new technologies to help parents control viewing. In fact, it suggested that "We can think of no reason why [the] rationale for applying strict scrutiny in the case of cable television would not apply with equal force to broadcast television in light of the V-chip technology that is now available."

They did not close the door to a defendable indecency policy, but said the one the FCC defended did not pass constitutional muster. "We do not suggest that the FCC could not create a constitutional policy. We hold only that the FCC's current policy fails constitutional scrutiny."

The court said there was "little rhyme or reason" to decisions about what language to find indecent or not, citing the news exemption, which the FCC has said is not absolute, or the swearing in Saving Private Ryan the FCC decided not to punish, while citing swearing in documentary The Blues.

That, said the court, allows the FCC to decide when the First Amendment is or isn't implicated. "The FCC's current indecency policy undoubtedly gives the FCC more flexibility, but this flexibility comes at a price. The "artistic necessity" and "bona fide news" exceptions allow the FCC to decide, in each case, whether the First Amendment is implicated. The policy may maximize the amount of speech that the FCC can prohibit, but it results in a standard that even the FCC cannot articulate or apply consistently."

The three judges rendering the unanimous decision were Rosemary Pooler, Pierre Level and Peter Hall, with Pooler writing the decision. It was the same three-judge panel that ruled the first time. In that ruling, they had suggested in dicta, which is non-precedential musings of the court, that the FCC would have a high First Amendment hurdle if the case were to be looked at on constitutional grounds.

Oral argument in the case was held back in January, with most observers even then giving the day to Fox and its lawyers.

"The commission's arguably contradictory and bewildering ruling between words that are and words that are not [indecent] seems to me to create a kind of bewildering vagueness that arguably results in a chill vastly beyond anything the Supreme Court ruled on....," Judge Leval had said at the time. That proved to be the judge's conclusion.

"We are extremely pleased with the decision handed down today by the second circuit," said Fox in a statement. "We have always felt that the government's position on fleeting expletives was unconstitutional. While we will continue to strive to eliminate expletives from live broadcasts, the inherent challenges broadcasters face with live television, coupled with the human element required for monitoring, must allow for the unfortunate isolated instances where inappropriate language slips through. "

"The score for today's game is First Amendment one, censorship zero," said Andrew Schwartzman, of the Media Access Project. MAP represented the Center for Creative Voices and the Future of Music Coalition as interveners in the case.

"Media Access Project entered this case on behalf of writers, producers, directors and musicians because the FCC's indecency rules are irredeemably vague and interfere with the creative process," said Schwartzman. "Today's decision vindicates that argument. The next stop is the Supreme Court, and we're confident that the Justices will affirm this decision."

The Janet Jackson remand is still outstanding in the Third Circuit. The FCC's fine for the Super Bowl reveal was initially thrown out as arbitrary and capricious by that court as well, but after the Supreme court vacated the Fox profanity Second Circuit decision, it remanded that case as well for a second look.

The FCC can now either try to appeal this decision to the full court, wait to see what the Third Circuit does or go straight the Supreme Court.

"We're reviewing the court's decision in light of our commitment to protect children, empower parents, and uphold the First Amendment," said FCC Chairman Julius Genachowski in a statement.

"Let's be clear about what has happened here today," said Parents Television Council President Tim Winter. "A three-judge panel in New York once again has authorized the broadcast networks' unbridled use of the ‘f-word' at any time of the day, even in front of children. For parents and families around the country, this ruling is nothing less than a slap in their face."

It was PTC complaints that helped prompt the FCC crackdown on fleeting profanity and nudity.