Last week’s court decision throwing out the FCC’s profanity findings against Fox may have been a narrow judgment focused on a single point. But add the sharp edge of its language—which takes aim at the broader issue of the constitutionality of the FCC’s indecency-enforcement policy—and the decision becomes a knife aimed straight at the heart of the FCC’s content-control regime.
That may be a strong metaphor, but it’s no stronger than our support for this decision. The New York-based Second Circuit Court of Appeals has officially stated, in 40 pages of legal language and voluminous citations, what many people have known and said since the FCC first reversed itself and decided the singer Bono’s “fucking brilliant” exclamation was a threat to children everywhere. The policy is nonsensical, unreasonable and unjustified, as was the commission’s targeting of CBS for the Super Bowl halftime show. It’s time for common sense to be restored to the marketplace of ideas, and this decision should be the first nail in the coffin of government content control.
Another implicit message in the court’s decision was that the FCC doesn’t know Shinola about regulating content—and shouldn’t even think about compounding the problem by sticking its bluenose into regulation of violent content.
The commission had claimed that variants of “fuck” and “shit,” including “bullshitter,” referred to sex and defecation, even when used adjectively or as intensifiers. That was such obvious nonsense that no amount of FCC courtroom gymnastics could make sense out of it.
The FCC even backed off adding “shit” to its “won’t fly” zone, but it was too late to avoid the court’s scorn. Nobody needed a court to tell them that someone using the term “bullshitter” was not referring to a bull doing his business. Still, it was encouraging to have one branch of government appear to be traversing in the real world.
The commission argued that such language is a “first blow,” with viewers and listeners unable to escape. The court pointed out that the FCC provided no evidence that a fleeting expletive is even harmful, much less harmful enough to warrant government intervention. And even if it were a first blow, said the court, why is it any more a blow to unsuspecting children watching an awards show than in news or Saving Private Ryan? The FCC itself had conceded that the same Billboard Awards Show clips of Nicole Ritchie, Paris Hilton and Cher swearing would not be profane if aired during a newscast. That “blow to unsuspecting kiddies” theory was a sucker punch that leveled the commission’s own case.
Because appeals courts are required by long-standing precedent to decide cases as narrowly as possible, the New York court confined its decision to the FCC’s two profanity findings against Fox, as well as the underlying policy change in Bono. But it was clearly itching to raise constitutional questions the FCC wouldn’t like to hear answers to. Judge Rosemary Pooler, writing for the majority in a 2-1 decision, weighed in with language that had communications attorneys salivating.
Pooler was expansively critical of the commission, eviscerating its arguments in a way that raised the hackles of the normally circumspect FCC Chairman Kevin Martin. In an instance of legal road rage, Martin repeated the words “shit” and “fuck” throughout his statement as though to deliver the same blows the FCC claims cussing rains down on the unsuspecting public. He also referenced the “New York” court, perhaps subtly suggesting that he viewed the decision as a coastal assault by the liberal elite on the conservative heartlanders. If so, umbrage taken and noted.
Beyond calling the FCC’s policy on profanity “divorced from reality,” the opinion took the entire FCC indecency-enforcement regime to task. It addressed constitutional questions raised in the arguments but not reached in the decision because the court didn’t have to get past the fact that the Fox findings, and the Bono policy, were illegally vague and arbitrary.
The following should provide something for the Third Circuit Court of Appeals to think about when it hears oral arguments on the Janet Jackson Super Bowl challenge come September. Here are a few highlights, with editorial comment added, from the “Constitutional Challenges” section of the opinion, which communications attorneys should be laminating and carrying with them to whatever court they wind up defending broadcasters in:
“We are skeptical that the Commission can provide a reasoned explanation for its 'fleeting expletive’ regime that would pass constitutional muster.” So are we.
“All speech covered by the FCC’s indecency policy is fully protected by the First Amendment.” The emphasis is ours.
“We question whether the FCC’s indecency test can survive First Amendment scrutiny.” Memo to the FCC: It can’t.
“The FCC’s indecency test is undefined, indiscernible, inconsistent, and consequently, unconstitutionally vague.” Other than that, how was the play, Mrs. Lincoln?
At press time, the FCC was deciding whether or not to appeal the decision to the full Second Circuit Court or even to the Supreme Court. Bring it on.
That will likely open up the floor to the constitutionality issues. It’s time somebody stepped in to stop this madness.