NY federal appeals court finds FCC’s fleeting expletive policy unconstitutionally vague

NYC court tosses FCC’s fleeting expletives policy

NEW YORK — A federal appeals court on Tuesday struck down a government policy that can lead to broadcasters being fined for allowing even a single curse word on live television, saying it is unconstitutionally vague and threatens speech “at the heart of the First Amendment.”

The 2nd U.S. Circuit Court of Appeals in Manhattan threw out the 2004 Federal Communications Commission policy, which said that profanity referring to sex or excrement is always indecent.

“By prohibiting all ‘patently offensive’ references to sex, sexual organs and excretion without giving adequate guidance as to what ‘patently offensive’ means, the FCC effectively chills speech, because broadcasters have no way of knowing what the FCC will find offensive,” the court wrote.

“To place any discussion of these vast topics at the broadcaster’s peril has the effect of promoting wide self-censorship of valuable material which should be completely protected under the First Amendment,” it added.

The court said the FCC might be able to craft a policy that does not violate the First Amendment.

It cited several examples of chilled speech, including a Vermont station’s refusal to air a political debate because one local politician previously had used expletives on the air and a Moosic, Pa., station’s decision to no longer provide live coverage of news events unless they affect matters of public safety or convenience.

“This chill reaches speech at the heart of the First Amendment,” the appeals court said.

In a statement, FCC Chairman Julius Genachowski said: “We’re reviewing the court’s decision in light of our commitment to protect children, empower parents, and uphold the First Amendment.”

Carter Phillips, a Washington lawyer who argued the case for Fox Television Stations Inc., called the decision satisfying. He said the court had “sent the FCC back to square one to start over” by not only tossing the FCC’s fleeting expletive policy but also a broader indecency policy as unconstitutionally vague.

Andrew Jay Schwartzman, policy director of Media Access Project, which joined the case on behalf of musicians, producers, writers and directors, said: “The score for today’s game is First Amendment one, censorship zero.”

Parent Television Council President Tim Winter said the ruling was a slap in the face to parents and families.

“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,” Winter said in a statement.

The FCC’s fleeting expletive policy was put in place after a January 2003 NBC broadcast of the Golden Globes awards show, in which U2 lead singer Bono uttered the phrase “f—— brilliant.” The FCC said the F-word in any context “inherently has a sexual connotation” and can lead to enforcement.

Fox Television Stations, owned by Rupert Murdoch’s News Corp., and other networks challenged the policy in 2006 after the FCC cited the use of profanity during awards programs that were aired in 2002 and 2003.

The FCC found its ban also was violated by a Dec. 9, 2002, broadcast of the Billboard Music Awards in which singer Cher used the phrase “F— ‘em” and a Dec. 10, 2003, Billboard awards show in which reality show star Nicole Richie said, “Have you ever tried to get cow s— out of a Prada purse? It’s not so f—— simple.”

The ruling by the three-judge panel came after the Supreme Court last year upheld the policy on procedural grounds and returned it to the 2nd Circuit for consideration of constitutional arguments.

In Tuesday’s ruling, Judge Rosemary Pooler wrote for the three-judge panel, describing the evolution of the FCC’s rules for what it regarded as indecent speech.

She recounted how the FCC first exercised its authority to regulate speech it considered indecent in 1975 after the airing of comedian George Carlin’s “Filthy Words” monologue containing a 12-minute string of expletives broadcast on the radio at 2 p.m.

The FCC pursued a restrained enforcement policy afterward, limiting its enforcement powers to the seven specific words in the Carlin monologue, she said.

In 1987, the FCC ended its focus on specific words, adopting a “contextual approach to indecent speech,” Pooler said.

The FCC changed its policy in 2004, responding to Bono’s outburst, by saying for the first time that a single use of an expletive — a so-called fleeting expletive — could result in a fine, she wrote.

The commission then expanded its enforcement efforts and began issuing record fines for indecency violations by treating each licensee’s broadcast of the same program as a separate violation rather than a single violation for each program, Pooler said.

In citing the confusion caused by the FCC’s current policy, Pooler wrote that the FCC found some commonly used expressions to be indecent while others, such as “pissed off,” ”up yours” and “kiss my ass,” were found not to be patently offensive.

“The English language is rife with creative ways of depicting sexual or excretory organs or activities,” she wrote. “Even if the FCC were able to provide a complete list of all such expressions, new offensive and indecent words are invented every day.”

Still, she noted that after the FCC defined the seven dirty words banned for broadcasters after Carlin’s performance, not a single enforcement action was brought in the nine years afterward.

“This could be because we lived in a simpler time before such foul language was common. Or it could be that the FCC’s policy was sufficiently clear that broadcasters knew what was prohibited,” Pooler said.

AP Technology writer Joelle Tessler in Maryland contributed to this report.