CBS has told a federal appeals court that the FCC's crackdown on broadcast profanity is unjustified, unconstitutional, arbitrary and capricious, saying the FCC should return to a more First Amendment-friendly approach to indecency enforcement.
The commission initially ruled that The Early Show's broadcast of the word "bullshitter" violated FCC restrictions on indecency and profanity, part of a package of four profanity rulings.
CBS and others sued the FCC over the rulings, after which the FCC asked the court for a chance to review the decisions citing a procedural flaw. It wound up changing its mind and deciding it had not had sufficiently deferred to CBS's assertion that the show was a news program, which has a higher threshold for indecency and profanity findings.
The FCC vacated the finding against The Early Show--and one against ABC--while upholding two against Fox. But CBS remains a petitioner in the case since that finding is being appealed by the Parent's Television Council and thus the FCC could change its mind yet again.
In a brief filed Wednesday with the United States Court of Appeals for the Second Circuit in New York, CBS argues that the FCC has for 30 years taken a cautious approach to indecency regulation to "avoid conflict with the First Amendment." Now, it says, it has abandoned its long-established policy of not cracking down on "fleeting, isolated or unintended expletives" that it argues was the "cornerstone" of that restrained policy.
"The FCC's adoption of what amounts to a zero-tolerance approach is a direct repudiation of governing constitutional principles."
CBS argues that the FCC's approach "ignores the significant technological and legal developments since the Supreme Court last considered the issue in 1978."
It also argues that the commission has no evidence that that the broadcasts it found indecent and profane were patently offensive when measured against a national community standard, its effort to unilaterally declare that to be the case notwithstanding.
The FCC has said that "context" is King in deciding what is or isn't indecent, but CBS suggests the commission is dealing that king from the bottom of the deck.
In this proceeding, argues CBS, "the commission has once again demonstrated that it can and does manipulate its 'contextual factors' to reach whatever result it wants in any given case." CBS says the commission has invoked context to "expand infinitely its ability to restrict speech.
CBS stopped short of challenging the underpinnings of the indecency enforcement regime.
In a statement accompanying the court filing, CBS said: "Contrary to the recent statements by the FCC suggesting we are seeking the right to use expletives at will in our programming, all CBS is seeking is a return to the FCC's previous time-honored practice of more measured indecency enforcement."
CBS also filed a brief this week--making similar arguments--in its challenge to the FCC's $550,000 fine for the Janet Jackson/Justin Timberlake Super Bowl reveal. The FCC said of that filing: "“CBS believes there should be no limits on what can be shown on television even during family viewing events like the Super Bowl; we continue to believe they are wrong.”
That would seem at odds with the FCC's characterization of broadcasters' general standard, which it used to justify its own take on community standards. In its revised Nov. 7 decision on the four--whittled down to two--profanity findings, the commission had said: "Taken as a whole, broadcasters’ practices with respect to programming aired during the safe harbor reflect their recognition that airing the “F-Word” and the “S-Word” on broadcast television is generally offensive to the viewing audience and, in the usual case, not consistent with contemporary community standards for the broadcast medium."