A federal appeals court on Monday found that a new Federal Communications Commission policy penalizing accidentally aired expletives was invalid, saying it was “arbitrary and capricious” and might not survive First Amendment scrutiny.
The 2nd U.S. Circuit Court of Appeals did not, however, outlaw the policy outright. In a 2-1 ruling, it found in favor of a Fox Television-led challenge to the policy and returned the case to the FCC to let the agency try to provide a “reasoned analysis” for its new approach to indecency and profanity. It added it was doubtful the FCC could do so.
The broadcasters had asked the appeals court last year to invalidate the FCC’s conclusion that profanity-laced broadcasts on four shows were indecent, even though no fines were issued.
The new policy was put in place after a January 2003 broadcast of the Golden Globes awards show by NBC when 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 trigger enforcement.
Monday’s ruling favored Fox’s challenge to the FCC’s finding of indecency in regards to 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 FCC late last year had dropped its indecency claims against two other television broadcasts.
FCC Commissioner Michael J. Copps said the court’s decision was “disappointing to me and to millions of parents and concerned citizens across the land” but “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,” Copps said in an e-mailed statement. “The FCC has a duty to find a way to breathe life into the laws that protect our kids.”
He said an appeal was possible.
In a statement, Fox Broadcasting said: “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. 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.”
In its ruling, the appeals court said it found that the FCC’s new policy regarding so-called fleeting expletives “represents a significant departure from positions previously taken by the agency and relied on by the broadcast industry.”
The appeals court said agencies are free to revise their rules and policies, but it said they must provide a reasoned analysis, which the FCC had failed to do.
In a majority opinion written by Judge Rosemary Pooler, the appeals court said all speech covered by the FCC’s indecency policy is fully protected by the First Amendment.
“With that backdrop in mind, we question whether the FCC’s indecency test can survive First Amendment scrutiny,” she said. “For instance, we are sympathetic to the networks’ contention that the FCC’s indecency test is undefined, indiscernible, inconsistent and consequently unconstitutionally vague.”
The court said it could understand why the networks argue that the FCC’s indecency policy “fails to provide the clarity required by the Constitution, creates an undue chilling effect on free speech and requires broadcasters to ’steer far wider of the unlawful zone.”’
“In the licensing context, the Supreme Court has cautioned against speech regulations that give too much discretion to government officials,” the court said.
The appeals court said some of the FCC’s explanations for a 180-degree change in its policy were “divorced from reality.” It then countered the FCC argument that broadcasters might without the new policy air expletives all day by saying broadcasters had never done so in the 30 years before the policy was changed.
The appeals court gave a nod to what it called “today’s realities” when it mentioned the ability of parents to limit what their children see with technological tools.
“The proliferation of satellite and cable television channels — not to mention Internet-based video outlets — has begun to erode the ’uniqueness’ of broadcast media, while at the same time, blocking technologies such as the V-chip have empowered viewers to make their own choices about what they do, and do not, want to see on television,” the appeals court wrote.
In a dissent, Judge Pierre Leval said the FCC had given a “sensible, although not necessarily compelling, reason” for its new policy.
He noted that the FCC had concluded that the F-word “is of such graphic explicitness in inevitable reference to sexual activity that absence of repetition does not save it from violating the standard of decency.”
Although Fox was the plaintiff in the appeal, representatives of other networks were interested parties and submitted written arguments to the court.