Second Circuit Throws Out FCC Indecency Policy for Vagueness

The Second Circuit Court of Appeals tossed the FCC's indecency policy in issuing fines for fleeting expletives on Constitutional grounds.  The Supreme Court had originally upheld the policy but sent it back to the lower courts to consider the Constitutional issue.  The FCC had levied fines against Fox, CBS, and others starting in 2004 for objectional words that were used in live and generally unscripted broadcasts.  The enforcement and fines represented a change in how the FCC regulated offensive speech in broadcast media.

The Court noted that given what the FCC decided was indecent and what was not, the indecency policy was vague.  Beyond traditionally indecent words, broadcasters would not know what words were or were not usable in what context.  The opinion goes into some detail with examples.  Find them on page 23 of the opinion.  The FCC argued that the old standard, the seven words that can't be said was outdated.  From the opinion:

The FCC argues that a flexible standard is necessary precisely because the list was not effective – broadcasters simply found offensive ways of depicting sexual or excretory organs or activities without using any of the seven words. In other words, because the FCC cannot anticipate how broadcasters will attempt to circumvent the prohibition on indecent speech, the FCC needs the maximum amount of flexibility to be able to decide what is indecent. The observation that people will always find a way to subvert censorship laws may expose a certain futility in the FCC’s crusade against indecent speech, but it does not provide a justification for implementing a vague, indiscernible standard. If the FCC cannot anticipate what will be considered indecent under its policy, then it can hardly expect broadcasters to do so. And while the FCC characterizes all broadcasters as consciously trying to push the envelope on what is permitted, much like a petulant teenager angling for a later curfew, the Networks have expressed a good faith desire to comply with the FCC’s indecency regime. They simply want to know with some degree of certainty what the policy is so that they can comply with it. The First Amendment requires nothing less.

The reaction to the opinion was swift.  The FCC has issued the obligatory "we're reviewing the decision" statement.  The Parents Television Council, an organization that pushes many of the obscenity complaints to the FCC stated:

“Let’s be clear about what has happened here today: 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.  The Court substituted its own opinion for that of the Supreme Court, the Congress of the United States, and the overwhelming majority of the American people.  For parents and families around the country, this ruling is nothing less than a slap in their face. FCC Chairman Julius Genachowski and the Obama administration must immediately appeal,” said PTC President Tim Winter. 

Family Guy creator Seth McFarlane weighed in a while back when he broadcast the FCC song, which is rumored to be a favorite at the agency.  Note that Fox was not fined for that particular broadcast.  Expect an appeal.  [MG]