FCC's Fleeting Expletives Policy is Unconstitutionally Vague

A three-judge panel of the Second Circuit ruled today that the FCC's "fleeting expletives" policy for broadcast television is unconstitutionally vague.  The ruling follows a remand from the Supreme Court last year.  In that case, the Supreme Court overturned the Second Circuit's ruling that the fleeting expletives rule was arbitrary and capricious under the Administrative Procedures Act, but declined to address the First Amendment issue.

Today's ruling takes up the First Amendment issue (though under vagueness doctrine, not ruling on the level of scrutiny) and tees the case up yet again for Supreme Court review.

The FCC in 2001 adopted a policy that ruled content indecent following two determinations: (1) whether the material "describe[s] or depict[s] sexual or excretory organs or activities"; and (2) whether the broadcast is "patently offensive as measured by contemporary community standards for the broadcast medium."  The FCC considered three factors in determining whether a broadcast was patently offensive: (1) "the explicitness or graphic nature of the description or depiction"; (2) "whether the material dwells on or repeats at length" the description or depiction; and (3) "whether the material appears to pander or is used to titillate, or whether the material appears to have been presented for its shock value."  The Commission stated that "fleeting expletives" were not indecent under the second prong.

But in 2004, in reaction to Bono's enthusiastic acceptance speech at the 2003 Golden Globe Awards, the FCC changed course and ruled that a single, non-literal use of an expletive could be actionably indecent.  The FCC applied the policy aggressively (and seemingly inconsistently) since.

The Second Circuit ruled the policy unconstitutionally vague.  The court explained (in language that itself might violate the policy):

We agree with the Networks that the indecency policy is impermissibly vague.  The first problem arises in the FCC's determination as to which words or expressions are patently offensive.  For instance, while the FCC concluded that "bullshit" in a "NYPD Blue" episode was patently offensive, it concluded that "dick" and "dickhead" were not. . . .  Other expletives such as "pissed off," "up yours," "kiss my ass," and "wiping his ass" were also not found to be patently offensive. . . .  [I]n each of these cases, the Commission's reasoning consisted of repetition of one or more of the factors without any discussion of how it applied them.  Thus, the word "bullshit" is indecent because it is "vulgar, graphic and explicit" while the words "dickhead" was not indecent because it was "not sufficiently vulgar, explicit, or graphic."  This hardly gives broadcasters notice of how the Commission will apply the factors in the future.

Op. at 23.

As to the news and artistic exceptions, the court illustrated the vagueness problem thus:

Take, for example, the disparate treatment of "Saving Private Ryan" and the documentary, "The Blues."  The FCC decided that the words "fuck" and "shit" were integral to the "realism and immediacy of the film experience for viewers" in "Saving Private Ryan," but not in "The Blues." . . .  We query how fleeting expletives could be more essential to the "realism" of a fictional movie than to the "realism" of interviews with real people about real life events, and it is hard not to speculate that the FCC was simply more comfortable with the themes in "Saving Private Ryan," a mainstream movie with a familiar cultural milieu, than it was with "The Blues," which largely profiled an outsider genre of musical experience.  But even if there were a perfectly benign way of explaining these particular outcomes, nothing would prevent the FCC from applying its indecency policy in a discriminatory manner in the future.

Op. at 28.

The court invited reevaluation of the Supreme Court's 1978 ruling in FCC v. Pacifica, the case holding (narrowly) that the FCC could impose a civil forfeiture for George Carlin's "Filthy Words" monologue, a 12-minute string of expletives broadcast at 2:00 in the afternoon (but not obscene).  The court wrote that technology (like the V-chip) now allows blocking of unwanted content in a way that was unavailable at the time of Pacifica but was central to the Supreme Court's 2000 ruling in U.S. v. Playboy (overturning, under strict scrutiny analysis, federal law prohibiting cable television operators from broadcasting sexual content during certain hours).  In light of technological advances, the panel suggested that Playboy's strict scrutiny, and not Pacifica's lower level of scrutiny, provides the right standard of review.  The court:

We can think of no reason why [the rationale in Playboy] for applying strict scrutiny in the case of cable television would not apply with equal force to broadcast television in light of the V-chip technology that is now available.

Op. at 17.  The policy here would almost surely fail under strict scrutiny--just as the policy in Playboyfailed--because there are less restrictive ways (e.g., the V-chip) of achieving the Commission's end of protecting against indecencies on broadcast television.

But the court did not take on this task itself.  Instead, it dodged the standard issue and ruled the FCC's policy unconstitutionally vague. 

Given the panel's suggestions, look for the eventual appeal to the Supreme Court to raise the continued relevancy of Pacifica and to urge strict scrutiny for FCC's indecency policy for broadcast television, in addition to the vagueness question.

SDS