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Appeals Court Throws Out FCC's Indecency Policy

The Second Circuit Court of Appeals has thrown out the FCC's
indecency enforcement policy as unconstitutionally vague and chilling.

The Supreme Court had overturned the Second Circuit's original
decision that the policy was an arbitrary and capricious change in policy and
remanded the case back to the court for a second look.

This time, a three-judge panel of the court said the FCC's
decision finding swearing on awards shows on Fox indecent is
impermissibly vague, which means it chills speech. "Under the current
policy, broadcasters must choose between not airing or censoring controversial
programs and risking massive fines or possibly even loss of their
licenses," said the court, "and it is not surprising which option
they choose. Indeed, there is ample evidence in the record that the FCC's
indecency policy has chilled protected speech."

The decision could tee up the FCC's entire indecency enforcement
policy for Supreme Court review.

"We now hold that the FCC's policy violates the First
Amendment because it is unconstitutionally vague, creating a chilling effect
that goes far beyond the fleeting expletives at issue here. Thus, we grant the
petition for review and vacate the FCC's order and the indecency policy
underlying it."

The court did not weigh in on the limits of the FCC's
authority under the Supreme Court's Pacifica decision, which buttressed the FCC's
ability to regulate indecency. That call will be left for the High Court
if/when it gets to hear the case.

"The FCC interprets Pacifica as permitting it to exercise
broad regulatory authority to sanction indecent speech. In its view, the Carlin
monologue was only the most extreme example of a large category of indecent
speech that the FCC can constitutionally prohibit," said the court.
"Although, the Remand Order also found the broadcasts in question "profane," the FCC has abandoned that finding for the purposes of this appeal
and has relied solely on its finding of indecency. We therefore do not address
its profanity finding further. The Networks, on the other hand, view Pacifica
as establishing the limit of the FCC's authority. In other words, they believe
that only when indecent speech rises to the level of "verbal shock treatment,"
exemplified by the Carlin monologue, can the FCC impose a civil forfeiture.
Because Pacifica was an intentionally narrow opinion, it does not provide us
with a clear answer to this question. Fortunately, we do not need to wade into
the brambles in an attempt to answer it ourselves. For we conclude that,
regardless of where the outer limit of the FCC's authority lies, the FCC's
indecency policy is unconstitutional because it is impermissibly vague."

The court took into account changes in the marketplace, saying
that broadcaster was only one voice in many, and that there were new
technologies to help parents control viewing. In fact, it suggested that "We can
think of no reason why [the]
rationale for applying strict scrutiny in the case of cable television would
not apply with equal force to broadcast television in light of the V-chip
technology that is now available."

They did not close the door to a defendable indecency policy, but
said the one the FCC defended did not pass constitutional muster. "We do
not suggest that the FCC could not create a constitutional policy. We hold only
that the FCC's current policy fails constitutional scrutiny."

The court said there was "little rhyme or reason" to
decisions about what language to find indecent or not, citing the news
exemption, which the FCC has said is not absolute, or the swearing in Saving Private Ryan the FCC decided not
to punish, while citing swearing in documentary The Blues.

That, said the court, allows the FCC to decide when the First
Amendment is or isn't implicated. "The FCC's current indecency policy
undoubtedly gives the FCC more flexibility, but this flexibility comes at a
price. The "artistic necessity" and "bona fide news" exceptions allow the FCC
to decide, in each case, whether the First Amendment is implicated. The policy
may maximize the amount of speech that the FCC can prohibit, but it results in
a standard that even the FCC cannot articulate or apply consistently."

The three judges rendering the unanimous decision were
Rosemary Pooler, Pierre Level and Peter Hall, with Pooler writing the decision.
It was the same three-judge panel that ruled the first time. In that ruling,
they had suggested in dicta, which is non-precedential musings of the
court, that the FCC would have a high First Amendment hurdle if the case were
to be looked at on constitutional grounds.

Oral argument in the case was held back in January, with most
observers even then giving the day to Fox and its lawyers.

"The commission's arguably contradictory and bewildering
ruling between words that are and words that are not [indecent] seems to me to
create a kind of bewildering vagueness that arguably results in a chill vastly
beyond anything the Supreme Court ruled on....," Judge Leval had said
at the time. That proved to be the judge's conclusion.

"We are extremely pleased with the decision handed down today
by the second circuit," said Fox in a statement. "We have always
felt that the government's position on fleeting expletives was
unconstitutional. 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.

"The score for today's game is First Amendment one,
censorship zero," said Andrew Schwartzman, of the Media Access Project.
MAP represented the Center for Creative Voices and the Future of Music
Coalition as interveners in the case.

"Media Access Project entered this case on behalf of writers,
producers, directors and musicians because the FCC's indecency rules are
irredeemably vague and interfere with the creative process," said
Schwartzman. "Today's decision vindicates that argument. The
next stop is the Supreme Court, and we're confident that the Justices will
affirm this decision."

The Janet Jackson remand is still outstanding in the Third
Circuit. The FCC's fine for the Super Bowl reveal was initially thrown out as
arbitrary and capricious by that court as well, but after the Supreme court
vacated the Fox profanity Second Circuit decision, it remanded that case as
well for a second look.

The FCC can now either try to appeal this decision to the
full court, wait to see what the Third Circuit does or go straight the Supreme

reviewing the court's decision in light of our commitment to protect children,
empower parents, and uphold the First Amendment," said FCC Chairman Julius
Genachowski in a statement.

"Let's be clear about what has happened here today," said
Parents Television Council President Tim Winter. "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. For parents and
families around the country, this ruling is nothing less than a slap in their

It was PTC complaints that helped prompt the FCC crackdown on
fleeting profanity and nudity.

Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.