Appeals Court Thows Out FCC's Indecency Policy

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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."

That 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."

"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, which 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."