Wednesday, July 14, 2010

FCC's indecency standards struck down as unconstitutional

The Court of Appeals has struck down as unconstitutional the FCC's broadcast standards intended to get "fleeting expletives" and other foul-mouthed utterances off the air. The Court holds that the guidelines are too vague and have the effect of chilling First Amendment speech.

The case is Fox Television Stations v. FCC, decided on July 13. The FCC has been trying to police vulgar language on television for decades, most famously in the 1970s, when it took George Carlin's 12-minute "seven dirty words" monologue all the way to the Supreme Court, which held in 1978 that the government had greater leeway to regulate speech on radio and television since these mediums were easily accessible to children.

It was a different world in the 1970s, when cable television was in its infancy and there was no Internet. We only had a few channels back then, and it was much easier for children to watch objectionable programming. Despite the explosion of new media, though, over the last 10 years, the FCC stepped up enforcement of expletives on radio and television after celebrities like Bono and Cher (among others) proved themselves incapable of uttering even a public statement without using obscene language. These were called "fleeting expletives" in that the broadcasters did not know this language was coming and therefore could not prevent them. That did not stop the FCC from treating these incidents as violations of government policy, which could cost broadcasters thousands of dollars in fines.

Adopted in 2001, the FCC's indecency policy punishes broadcasters for language that describes or depicts sexual or excretory organs or activities. It also prohibits "patently offensive" language as measured by "community standards." The Court of Appeals (Pooler, Leval and Hall) strikes down these standards as too vague to place broadcasters on proper notice of when they are going to be fined. In illustrating why this is so, the Second Circuit provides examples that necessarily require the Court to use foul language (like "fuck" and "shit") in fleshing out the opinion. In fact, I have never seen a Second Circuit opinion with so much potty language.

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. The Court observes, "[t]hus, 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."

While the FCC says it needs a flexible standard because broadcasters will try to subvert the censorship laws, that argument only further shows how vague the standards really are. The Court of Appeals notes that "If the FCC cannot anticipate what will be considered indecent under its policy, then it can hardly expect broadcasters to do so."

The FCC does exempt expletives if they are essential to a particular program or part of a "bona fide" news broadcast. In light of the FCC's inconsistent application of this test (which protects foul language in moves like Saving Private Ryan but not gratuitous cursing during the Golden Globe Awards), this cannot work, the Court of Appeals says. "There is little rhyme or reason to these decisions and broadcasters are left to guess whether an expletive will be deemed 'integral' to a program or whether the FCC will consider a particular broadcast a 'bona fide news interview.'” Broadcasters are going to have to guess whether certain obscenities run afoul of the FCC's decency rules. The First Amendment cannot tolerate this. As the Second Circuit notes:

[W]hen Judge Leval asked during oral argument if a program about the dangers of pre-marital sex designed for teenagers would be permitted, the most that the FCC’s lawyer could say was “I suspect it would.” With millions of dollars and core First Amendment values at stake, “I suspect” is simply not good enough.

The zinger here is that there is evidence that the vague broadcast standards have, in fact, chilled free speech. There is no greater threat to free speech than evidence that vague rules will make broadcast and radio executives think twice about certain programming. For example, under the FCC's revised speech standards, some CBS affiliates were afraid to re-broadcast a documentary on 9/11, which included foul language from real footage of the World Trade Center attack. A radio station canceled a planned reading of a Tom Wolfe novel because it contained adult language. Bona-fide news programs are also being chilled, particularly political debates involving a politician who had previously used expletives on the air.

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