Appeals Court Strikes Down Indecency Rule

July 13, 2010, 1:19 pm
Appeals Court Strikes Down Indecency Rule
By BRIAN STELTER

A United States appeals court tossed out the indecency policy of the Federal Communications Commission on Tuesday, calling it a violation of the First Amendment.

An appeals panel said the F.C.C. policy was “unconstitutionally vague, creating a chilling effect that goes far beyond the fleeting expletives at issue here.”

The action is rooted in a 2004 decision by the F.C.C. under the Bush administration to step up its enforcement of indecency on the broadcast airwaves. According to Tuesday’s court filing, the F.C.C. policy stated that “a single, nonliteral use of an expletive (a so-called ‘fleeting expletive’) could be actionably indecent.”

Also that year, Congress said that the F.C.C. could fine stations up to $325,000 for each instance of indecent speech, substantially upping the penalties for an un-bleeped curse word. Facing fines into the millions of dollars, the networks first took their fight against the indecency policy to the courts in 2006.

On Tuesday the 2nd Circuit Court of Appeals found that “the FCC effectively chills speech because broadcasters have no way of know what the FCC will find offensive.”

In a statement, Fox Broadcasting said it was extremely pleased by Tuesday’s decision. “We have always felt that the government’s position on fleeting expletives was unconstitutional,” said the company, a unit of the News Corporation. “While we will continue to strive to eliminate expletives from live broadcasts, the inherent challenges broadcasters face with live television, coupled with the human element required for monitoring, must allow for the unfortunate isolated instances where inappropriate language slips through.”

Other major broadcasters echoed Fox’s comments in private, but declined to comment on the record.

“The score for today’s game is First Amendment one, censorship zero,” Andrew Jay Schwartzman, senior vice president for the nonprofit Media Access Project, said in a statement.

The group was among those that opposed the rules and claimed that they “interfere with the creative process.”

“Today’s decision vindicates that argument,” Mr. Schwartzman’s statement said. “The next stop is the Supreme Court, and we’re confident that the Justices will affirm this decision.”
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George Carlin would be so happy!
Recommend Recommended by 16 Readers
2.
Uncle Ho
New York
July 13th, 2010
2:06 pm
this is the best news this country has had for quite a while.
Recommend Recommended by 8 Readers
3.
Barry
Virginia
July 13th, 2010
2:06 pm
Good going by the appeals court. One small retreat for repression. I don't know if it's directly related, but I've long thought fining CBS for the 'wardrobe malfunction' was silly. I also thought the 'wardrobe malfunction' was a silly trick by the performers. If anyone should have been fined, it was them.
Recommend Recommended by 8 Readers
4.
Mark
New Jersey
July 13th, 2010
2:06 pm
Finally! For those who are satisfied with Government - Democrat or Republican, remember this what Congress chose to focus on instead of fixing entitlements, reforming Fannie Mae, making sense out of our tax code.

This is a victory for all Americans and is a first step towards returning the airwaves to the people. Next step, lets abolish the FCC.
Recommend Recommended by 8 Readers
5.
vklip
Pennsylvania
July 13th, 2010
2:07 pm
Hooray!! It's about time.
Recommend Recommended by 4 Readers
6.
Martin
New York, NY
July 13th, 2010
2:07 pm
If it weren't for the 2004 policy Howard Stern might not be making $70MM a year on satellite radio!
Recommend Recommended by 5 Readers
7.
Owat Agoosiam
NY
July 13th, 2010
2:07 pm
It's a decision that makes alot of sense.
Unfortunately, Mr. Schwartzman is quite naive.
The Roberts Court will not affirm this decision. In fact, the Court will probably expand the FCC's latitude to determine what is considered obscene.
Recommend Recommended by 6 Readers
8.
Human Power
eugene, or
July 13th, 2010
2:07 pm
One of the many costs of liberty is the risk of being offended in the public square. Sounds like a bargain to me. Good call Second Circuit.
Recommend Recommended by 10 Readers
9.
steve h
san francisco
July 13th, 2010
2:07 pm
George Carlin and I are cheering! I doubt that the 'Supremes' will be, though.
Recommend Recommended by 4 Readers
10.
RW
PA
July 13th, 2010
2:07 pm
I'm amused that political conservatives like Bush and his ilk who allegedly abhor government intervention and allegedly champion personal freedom do a complete flip flop when it comes to "dirty" words. Then they turn into our national parents, ready to wash our mouths out with soap at every opportunity.
Recommend Recommended by 14 Readers
11.
J.S. Fowler
Richmond, VA
July 13th, 2010
2:07 pm
It's about (bleep)ing time!
Recommend Recommended by 11 Readers
12.
Bill Randle
The Big Apple
July 13th, 2010
2:07 pm
Curious that we allow the extreme depiction of violence on TV virtually uncensored but television stations and newspapers regularly edit out harmless expletives, even when they are part of the news or contextually relevant to the understanding of a story.

We live in a mollycoddled, puritanical nation in which we allow our government to tell us what we can handle. Meanwhile, our prepubescent kids are down at the corner swearing like sailors. Who are we protecting? Our kids or a false image of our holier-than-thou that hasn’t existed for centuries (if ever)?
Recommend Recommended by 24 Readers
13.
nomcebo
NYC
July 13th, 2010
2:07 pm
WTF!
Recommend Recommended by 9 Readers
14.
R. Law
Texas
July 13th, 2010
2:07 pm
See - if the SCOTUS is going to o.k. snuff films, then the unspeakable horror of a split-second glimpse of some decollatage during the Super Bowl becomes absurd.

CBS is getting some big bucks back, it would appear :)
Recommend Recommended by 4 Readers
15.
j.batliwala
Southbury, Conn.
July 13th, 2010
2:07 pm
What a wise (expletive deleted) decision.
Recommend Recommended by 4 Readers
16.
Joel L. Friedlander
Plainview, New York
July 13th, 2010
2:08 pm
The FCC has been childish and stupid for decades. Children in our schools are intimately familiar with every expletive and cuss word that could ever be uttered before they finish kindergarten. What the FCC has done is to guarantee that broadcast television cannot compete with the realism and integrity of cable television. It is high time that the FCC enter the 21st Century and stop chilling free speech on the airways. They need to stop hiring and promoting moral prigs to enforce the laws.
Recommend Recommended by 4 Readers
17.
Wayne
Orlando
July 13th, 2010
2:08 pm
Surprised it took this long to strike down a bad law. If unlimited corporate contributions are protected free speech, then surely the SCOTUS will uphold this decision.
Recommend Recommended by 3 Readers
18.
Gene S.
Hollis, NH
July 13th, 2010
2:08 pm
This decision doesn't mean the FCC can't set reasonable decency standards. This is a "void for vagueness" ruling. It just means the FCC just has to list the offensive words. It's not at all impossible. After all, George Carlin managed to specify ten words...
Recommend Recommended by 4 Readers
19.
Chris
Canada
July 13th, 2010
2:10 pm
Maybe in such cases, it should be possible to skip the first trial and the appeal, and go right over to the Supreme Court... What is the point in going to the lower courts when both parties are decided to appeal an unfavorable decision?
Recommend Recommended by 0 Readers
20.
NS
VA
July 13th, 2010
2:10 pm
Thank God. It shows there are judges not moved by the emotional outbursts of the "I am outraged and shocked" crowd. I stand by my belief that most people who claim to be outraged by most of these tame acts of indecency we see, like the fraction of a second of Janet Jacksons breast are just attention seekers trying to achieve some sort of moral superiority over those of us who say "what is the big deal?". If Bono and his pals using the F-word shocks you, don't tune into award shows with foul mouth rock stars on parade. The following dialogue between Ned Flanders and his son on the Simpsons, after a foul laced tirade by a news anchor on the air best describes the behavior of the "I am outraged crowd":

Rod: Daddy, what are you doing?
Ned Flanders: Imploring people I never met to pressure a government with better things to do to punish a man who meant no harm for something nobody ever saw, that's what I'm doing!