An appellate court panel has handed broadcast networks a major victory, overturning the Federal Communications Commission’s attempt to impose new limits on “fleeting expletives” on broadcast TV.
On a 2-to-1 vote, a panel of the 2nd Circuit Court of Appeals in New York rejected the FCC’s ruling that Fox Television Network’s airing of profanities by Nicole Richie and Cher during the 2002 and 2003 Billboard Music Awards amounted to indecency. The court majority went further, questioning whether the new policy-issued in reaction to Bono’s referring to an award as “fucking brilliant” during NBC’s telecast of the Golden Globe Awards in 2003-was legally sustainable.
“For decades broadcasters relied on the FCC’s restrained approach to indecency regulation and its consistent rejection of arguments that isolated expletives were indecent,” said the majority statement, from judges Rosemary S. Pooler and Peter W. Hall. “While the FCC is free to change its previously settled view on this issue, it must provide a reasoned basis for that change.
“The FCC’s decision is devoid of any evidence that suggests a fleeting expletive is harmful, let alone established that this harm is serious enough to warrant government regulation. The order provides no reasoned analysis of the purported ‘problem’ it is seeking to address from which this court can conclude such regulation of speech is reasonable.”
One judge, Pierre N. Leval, dissented, saying federal agencies operate with broad discretionary authority and he believed the FCC fully satisfied its need to provide an explanation.
An FCC spokesman said today the agency is reviewing the decision. The court sent the case back to the FCC to provide a better justification.
In a statement today, Fox praised the ruling.
“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.”
However, FCC chairman Kevin J. Martin made no secret of his opinion of the verdict in a statement issued today.
“I completely disagree with the court’s ruling and am disappointed for American families,” Mr. Martin said. “I find it hard to believe that the New York court would tell American families that ‘shit’ and ‘fuck’ are fine to say on broadcast television during the hours when children are most likely to be in the audience.
“The court even says the commission is ‘divorced from reality,'” he continued. “It is the New York court, not the commission, that is divorced from reality in concluding that the word ‘fuck’ does not invoke a sexual connotation.
“These words were used in prime time, when children were watching. Ironically, the court implies that the existence of blocking technologies is one reason the FCC shouldn’t be so concerned. But even a vigilant parent using current blocking technologies such as the V-chip couldn’t have avoided this language, because they rely on the program’s rating, and in this case the programs were rated appropriate for family viewing.
“If ever there was an appropriate time for commission action, this was it. If we can’t restrict the use of the words ‘fuck’ and ‘shit’ during prime time, Hollywood will be able to say anything they want, whenever they want,” he concluded.
The appellate court’s decision is the first to come out of two cases challenging the FCC indecency decisions. In the second case, CBS is challenging fines from the Janet Jackson Super Bowl incident.
(Editor: Horowitz)