Court Challenges Indecency Policy

Special Report - July 19, 2010
A three-judge panel of the U.S. Court of Appeals for the Second Circuit held on July 13 that the Federal Communications Commission’s (FCC) indecency policy related to “fleeting expletives” violates the First Amendment “because it is unconstitutionally vague, creating a chilling effect that goes far beyond the fleeting expletives at issue here.” The case, Fox Television Stations, et al., v. FCC was remanded to the Second Circuit by a 5–4 decision of the Supreme Court in April 2009. The majority had ruled then that the FCC’s ban on “fleeting expletives” did not violate federal statutes, but upon appeal the Supreme Court sent the case back to the Second Circuit to consider the industry’s constitutional challenges to the ban.

The decision noted that broadcasters and the FCC still dispute the scope of the FCC’s authority as granted in the U.S. Supreme Court’s 1978 ruling in FCC v. Pacifica Foundation, which first upheld the FCC’s authority to regulate “indecent” broadcasts. The Circuit Court found that the Commission had not shown with clarity what is currently banned and what is currently allowed on radio or TV in entertainment or news programming. Such vagueness led the Court to nullify the policy outright. Circuit Judge Rosemary S. Pooler wrote in the ruling,

“We face a media landscape that would have been almost unrecognizable in 1978. Cable television was still in its infancy. The Internet was a project run out of the Department of Defense with several hundred users. Not only did Youtube, Facebook, and Twitter not exist, but their founders were either still in diapers or not yet conceived. In this environment, broadcast television undoubtedly possessed an ‘uniquely pervasive presence in the lives of all Americans.'

The same cannot be said today.  The past thirty years has seen an explosion of media sources, and broadcast television has become only one voice in the chorus.  Cable television is almost as pervasive as broadcast—almost 87 percent of households subscribe to a cable or satellite service—and most viewers can alternate between broadcast and non-broadcast channels with a click of their remote control….The internet, too, has become omnipresent, offering access to everything from viral videos to feature films and, yes, even broadcast television programs.”

The decision went on to note that technological changes have given parents clear control over what their children can see and hear on television. Considering such changing circumstances, as the U.S. Supreme Court did when it decided cable TV was subject to full, not qualified, First Amendment protection from government regulations, the Circuit Court could “think of no reason why this rationale for applying strict scrutiny in the case of cable television would not apply with equal force to broadcast television,” especially when considering the available parental control technology.

The FCC’s policy since 2001 had defined indecency as material, which “describe[s] or depict[s] sexual or excretory organs or activities,” or a broadcast, which is “patently offensive as measured by contemporary community standards for the broadcast medium.” It considered three factors in determining “patently offensive,” including “the explicitness or graphic nature of the description or depiction,” “whether the material dwells on or repeats at length” the description or depiction, and “whether the material appears to pander or is used to titillate, or whether the materials appears to have been presented for its shock value.” In 2003, the FCC changed the policy to consider a single nonliteral use—“fleeting expletive”—actionably indecent after finding that “the ‘F-Word’ is one of the most vulgar, graphic, and explicit descriptions of sexual activity in the English language” with an “inherently sexual connotation.”

Patrick A Trueman, former chief of the U.S. Department of Justice Child Exploitation and Obscenity Section, called the ruling “foolish on its face” in a recent press release. Trueman filed a friend-of-the-court brief in the case for the Family Research Council and Focus on the Family. “How is the American public to understand that federal judges don’t know that use of the ‘F-word’ is indecent during prime-time television?” Trueman asked in a statement. “Broadcasters will have a green light to pump indecent language and perhaps much more into the homes of families at will.”

The FCC now has the option of seeking an en banc review of the case by the full Second Circuit, or it may appeal the decision to the Supreme Court.

Copyright © 2010. North Carolina Family Policy Council. All rights reserved.