The FCC's profanity rulings against Fox have been thrown out and its "fleeting expletives" policy as currently defended found to be"arbitrary and capricious" by a federal court.
The court said the FCC’s “fleeting expletives” policy did not pass muster because the commission had failed “to articulate a reasoned basis for its change in policy.”
"We are very pleased with the court's decision and continue to believe that government regulation of content serves no purpose other than to chill artistic expression in violation of the First Amendment," said Fox in a statement. "Viewers should be allowed to determine for themselves and their families, through the many parental control technologies available, what is appropriate viewing for their home."
The commission can now appeal the the decision to the full court--it was heard by a three-judge panel--appeal it directly to the Supreme Court, or take another pass at trying to justify the policy.
An FCC spokesman has no comment on its plans, saying the commission was still reviewing the decision. But FCC Chairman Kevin Martin had a lot to say and Commissioner Michael Copps released a separate statement saying he was disappointed and that broadcasters don't have carte blanche to go swearing up the airwaves, though the court itself said broadcasters had not been doing anything of the sort.
The narrow opinion did not take up the broader challenge to the FCC's indecency enforcement regime, but instead said the profanity policy was a sufficient departure from previous policy that it needed better reasoning., and remanded the decisions back to the commission for that better justification. The decision was 2-1, with one judge dissenting.
Still, while the court did not take up the constitutional issues as part of its decision, it spent several pages ruminating on how difficult it would be for the FCC to make its policy pass the First Amendment smell test.
In effect, the court made the decision narrow, but its opinion on the issue was broad.
For example, it cited Supreme Court precedent that broadcast media content regulation is subject to less judicial scrutiny than cable or satellite because of its uniquely pervasive character, an argument the networks said has outlived the reality of a crowded media marketplace.
The court said in the face of that precedent it could not change that policy. "Nevertheless," it added, "we would be remiss not to observe that it is increasingly difficult to describe the broadcast media as uniquely pervasive and uniquely accessible to children, and at some point in the future, strict scrutiny may properly apply in the context of regulating broadcast television."
The decision also essentially invalidates the Golden Globes indecency finding against the fleeting profanity by Bono--"fucking brilliant"--on NBC. That decision wasn't part of this challenge, but signaled the change in FCC policy after a bureau-level decision had originally ruled the Bono profanity not indecent because it was fleeting and adjectival, a policy the FCC had followed for the previous three decades..
In preparing to defend its policy, the FCC had reversed itself on two profanity decisions, one against NYPD Blue for “bullshit,” “dick,” and “dickhead,” and one for the us of "bullshitter" in an Early Show broadcast on CBS.
But the court used the reversal on Early Show to highlight the capriciousneess of the policy.
Pointing out that the FCC had argued that such profanities were assaults on children, the court wondered why those words on a news broadcast would be any less assault on a child " who may have no understanding of whether expletives are “integral” to a program or whether the interview of a contestant on a reality show is a “bona fide news interview," two cases in which the FCC has argued the language would be protected (it has a broad, though not ironclad, exception for news, for example).
The court didn't buy the FCC's argument that uses of profanity were defacto references to sexual or excretory functions, saying it "defies any commonsense understanding of those words" and citing NBC's point that "even the top leaders of our government have used variants of these expletives in a manner that no reasonable person would believe referenced “sexual or excretory organs or activities. (citing President Bush’s remark to British Prime Minister Tony Blair that the United Nations needed to “get Syria to get Hezbollah to stop doing this shit” and Vice President Cheney’s widely-reported “Fuck yourself” comment to Senator Patrick Leahy on the floor of the U.S. Senate)"
The court also found that the FCC's treatment of profanity as presumptively indecent even if it were fleeting , and isolated and adjectival did not square with the importance it professed about context in making its indecency decisions.
Fox, joined by NBC and CBS, had challenged the ruling on various grounds, but the court said that after it found the decision arbitrary and capricious it did not need to address the other arguments against the FCC's indecency policies, though it signaled it didn't think the FCC would have won on those grounds either, at least with the arguments it made.
The court said in ruling against the commission: "We are doubtful that by merely proffering a reasoned analysis for its new approach to indecency and profanity, the Commission can adequately respond to the constitutional and statutory challenges raised by the Networks. Nevertheless, because we can decide this case on this narrow ground, we vacate and remand so that the Commission can set forth that analysis.
"While we fully expect the Networks to raise the same arguments they have raised to this court if the Commission does nothing more on remand than provide additional explanation for its departure from prior precedent, we can go no further in this opinion.
Accordingly, we grant the petition for review, vacate the order of the FCC, and remand the case
for further proceedings consistent with this opinion. The stay previously granted by this court is
vacated as moot."
In defending itself before the Second Circiut Court of Appeals back in December, Fox had argued that the FCC's new indecency policy of cracking down on cussing had "reached too far and censored too much speech," said Fox in its reply to the FCC's defense of its new policy.
The FCC found two Fox Billboard Awards show broadcasts to be profane, and thus indecent, because they allowed variants of the word "fuck" and "shit" to be broadcast outside of the FCC's 10 p.m.-6 a.m. safe harbor for "indecent" broadcast speech.
Fox argued that neither of the broadcasts would have been found indecent under the previous almost 30 years of FCC indecency policy (1975-2004) and that "without adequate explanation or even acknowledgment, the FCC has abandoned the restrained understanding of indecency that served the public for three decades."
Fox says the FCC's new policy means it can punish "virtually any isolated use of the words," with only "arbitrary exceptions when the word might be justified in context."
The FCC found that Saving Private Ryan's swearing passed muster.
Fox said the FCC has failed to even acknowledge the "magnitude" of that change in policy.
The change dates from the commission's reversal of a staff-level decision that Bono's fleeting and adjectival "Fucking brilliant" comment on an NBC Golden Globes award was not indecent. After Congress pressed it to reconsider that decision, the FCC did and concluded that the utterance was profane and indecent.
Fox's essential message was that the FCC's policy is "incurably arbitrary" and vague and that its targeting of "occasional expletives" is unconstitutional.
Monday, the court agreed, sending the decision back to the commission for better justfication.
NBC Universal, called the decision "a strong dose of common sense" that "discredits the FCC's 2004 Golden Globes decision"--eviscerate might have been a better word--"which has been subject to unresolved appeals pending at the agency for more than three years -- for its abrupt departure from long-standing policy regarding fleeting expletives in live programming."
NBC also praised the court's recognition of parental controls. "We applaud the court for recognizing that blocking technologies, such as the V-chip and parental ratings, have empowered viewers - including parents in the 1/3rd of U.S. TV households with children - to determine what programming is appropriate for their families to watch on television."
“This decision is disappointing to me and to millions of parents and concerned citizens across the land," said Democratic FCC Commissioner Michael Copps in a statement. "But it doesn't change the FCC's legal obligation to enforce the indecency statute. So any broadcaster who sees this decision as a green light to send more gratuitous sex and violence into our homes would be making a huge mistake.
"The FCC has a duty to find a way to breathe life into the laws that protect our kids. That may entail an appeal of this decision.
"Certainly it includes strong enforcement action of the many indecency complaints before us that are untouched by today's decision."
Still the FCC has not released any indecency rulings since the profanity court challenge began, including a raft of radio decisions that have been in the hopper for months.
""This is a timely opinion as public policymakers weigh the merits of further program content restrictions," said National Association of Broadcasters spokesman Dennis Wharton. "NAB has long believed that responsible industry self-regulation is preferable to government regulation in areas of programming content."
"The Second Circuit decision is not a surprise to us," said Patrick Maines, president of The Media Institute, "but it should send a strong message to the FCC. If the scheme couldn't even survive scrutiny under the Administrative Procedures Act, how would it square with a constitutional challenge?"
The Media Institute is a Washington-based First Amendment think tank funded by major networks and media companies.
“Score one for the First Amendment," said Andrew J. Schwartzman, president of Media Access Project. "It’s a shame that citizens and broadcasters had to seek protection from the courts, but it is very reassuring to know that one branch of the government can rise above demagogy.”
Dissenting was one member of that branch, Judge Pierre Leval, who argued the FCC as not being arbitrary and capricious, but was employing its justifiable administrative authority. "What we have is at most a difference of opinion between a court and an agency," he said. "Because of the deference courts must give to the reasoning of a duly authorized administrative agency in matters within the agency’s competence, a court’s disagreement with the Commission on this question is of no consequence."