Saying broadcasters have "only limited First Amendment protection," that the V-chip is "ineffective," and that they gave the industry notice it was changing policy on swear words, the FCC Wednesday both defended its profanity findings against cussing in Fox's Billboard Music Awards and defended the underpinnings of its entire indecency enforcement regime.
That defense came in its filing to the Second Circuit Court of Appeals of a brief responding to a broadcaster challenge of four profanity rulings issued last March.
Saying that the Pacifica case--the so-called Seven dirty words Supreme Court decision--upholding its indecency enforcement powers was "good law," the FCC disputed Fox's contention that its definition of indecency is unconstitutionally vague.
The FCC said that the Pacifica decision "endorsed the same definition," and said that Fox's broadcast of the words "fuck" and "shit" lie far from any zone of uncertainty that might exist at the margins of the indecency standard's application."
The FCC says that Fox did not contest that the language was shocking, or "particularly in context" for a prime time awards show, or justified on artistic grounds, or say they comported with community standards, but instead argued that the policy change was unexplained, arbitrary and capricious. In addition, it says, NBC--which weighed in as well--"appears to argue that the "f word" is never indecent when used as an "intensifier."
The FCC said it is free to change its policy if it explains it, argues that it did explain it, and says the broadcaster contentions are merit-less.
In its Golden Globe Order, the FCC said that it was changing course on isolated expletives--in this case a "fucking brilliant" from Bono on an NBC awards telecast, saying in the order: "We now depart from...any similar cases." The FCC contends that Fox is off base to assert that the FCC has claimed Bono was not a change in policy.
After broadcasters challenged the profanity rulings in the federal court, the FCC asked and got permission to review the decisions, ultimately upholding the ones against Fox but dismissing ones against CBS' Early Show on the grounds its fleeting expletive was not profane or indecent, and against ABC's NYPD Blue on procedural grounds.
The FCC said that Fox's argument that the commission was required to make a finding of willfulness before it could find a broadcast indecency was moot because the commission was supplying guidance rather than applying any sanction.
The commission had said back in March and since that it was trying to give broadcasters a sense of what it would find indecency going forward under its strengthened enforcement policy for non-blasphemous profane speech, so did not apply any fines or put a black mark in the station's files because the broadcasts had aired before it had announced the tougher enforcement policy.
In its filing Wednesday, the commission also argued that while Fox had pointed to other swearing that had passed muster--Saving Private Ryan, for instance--it had not defended the artistic merits of its own cussing on the Billboard Awards.
The FCC said that the "F-word," when used as an intensifier--"fucking brilliant," for example, is still covered by the indecency definition because its intensity "derives from its implicit sexual meaning."
The commission also argued that because broadcast spectrum is a scarce resource, broadcasters First Amendment protection is limited, and that the justification for speech regulation need only be substantial and the means narrowly tailored, rather than the "least restrictive means" test applied to other forms of speech regulation.
The FCC argues its indecency approach is narrowly tailored means to the compelling government interest in protecting children and because it channels indecent speech to late-night hours rather than banning it entirely.
The commission asked the court to to uphold its "reasonable assessment" that contemporary standards, "no matter how loosely viewed, simply do not permit entertainers gratuitously to utter the "F-word" and "S-Word" in awards shows broadcast on national television at times when a substantial number of children are certain to be in the viewing audience. That certain is a bit of a change from the "likelihood" that has historically been part of that phrase when government speech regulation is invoked.
The commission took direct aim at the V-chip/ratings system, which broadcasters argue is the less restrictive means to protect children from content their parents don't want them to be exposed to. For one thing, the FCC, said it isn't just trying to help parents supervise, but has some in loco parentis function of its own: an "independent and compelling interest in preventing minors from being expose to indecent broadcasts.
But beyond that, it says, the V-chip would not have helped because the Billboard broadcasts were "misrated." And more broadly, the chip is ineffective and the ratings often inaccurate, and are not sufficiently understood by parents even when correctly applied.
Fox, CBS and ABC will now have a chance to respond. CBS filed initial briefs along with Fox, even though its profanity ruling against the early show was reversed. ABC did not file briefs but kept open the option of continuing with the suit if the FCC changed its mind about reversing the NYPD Blue decision.
Both reversals are appeal able orders, and have been appealed by the Parents Television Council, so neither is a done deal.