A federal appeals court Monday tossed out a new Federal Communications Commission policy designed to punish the fleeting use of the “F-word” and “S-word” on broadcast TV during times when children are expected to be watching.
The ruling infuriated FCC chairman Kevin Martin, who issued an expletive-laced statement that slammed the U.S. Court of Appeals for the Second Circuit in New York for interfering with his crackdown on broadcast indecency.
“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,” Martin said. “If we can’t [restrict] the use of the words ‘fuck’ and ‘shit’ during primetime, Hollywood will be able to say anything they want, whenever they want.”
Martin also used his court defeat to stump for his favorite media-indecency panacea -- government-enforced sale of cable channels on an individual basis, or a la carte.
“By allowing them to choose the channels that come into their homes, Congress could deliver real power to American families,” Martin said. “Providing consumers more choice would avoid the First Amendment concerns of content regulation while providing real options for Americans.”
In a 2-1 ruling, a Second Circuit panel said the FCC could no longer enforce the new policy because the agency failed to justify the abandonment of the old standard, which generally refrained from punishing the one-time broadcast of the F-word and the S-word, especially in live situations.
“We find that the FCC’s new policy regarding ‘fleeting expletives’ represents a significant departure from positions previously taken by the agency and relied on by the broadcast industry,” the court ruled. “We further find that the FCC has failed to articulate a reasoned basis for this change in policy. Accordingly, we hold that the FCC’s new policy regarding ‘fleeting expletives’ is arbitrary and capricious under the Administrative Procedure Act.”
The court sent the rules back to the FCC for further review. The court warned that it had strong doubts the FCC could revive its fleeting expletive regime in a manner consistent with the First Amendment.
The FCC has legal authority to ban indecent speech from 6 a.m.-10 p.m. The agency defines indecent content as “language that describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities and organs at times of the day when there is a reasonable risk that children may be in the audience.”
For nearly 30 years, the FCC would not punish fleeting and isolated indecency and profanity, maintaining instead that repetitive use of the F-word to shock and pander would invite fines and other administrative sanctions, such as possible license-renewal problems.
But the agency changed policy in 2004. It found that rock singer Bono’s use of “fucking brilliant” was indecent during NBC’s live coverage of the 2003 Golden Globe Awards. NBC wasn’t fined because it didn’t have notice about of the new enforcement policy.
The FCC later applied the new standard to Fox’s live coverage of the 2002 and 2003 Billboard Music Awards. In 2002, singer-actress Cher used the phrase, “Fuck ‘em,” in her acceptance remarks. One year later, Hollywood actress Nicole Richie used “cow shit” and “not so fucking simple” during an award presentation. Fox wasn’t fined for either incident.
In reviewing the two Billboard actions, the court said the FCC’s chief legal theory behind the crackdown on isolated indecency couldn’t survive judicial review now because it had not been consistently applied.
The FCC told the court that fleeting use of the F-word assaulted the viewer, striking “the first blow” in a surprise attack. But the court said the first-blow theory was implausible due to the number and nature of the exemptions the FCC did and would permit.
For example, isolated use of the F-word in a news interview wouldn’t be actionable. Nor would repeated use of the F-word if “integral” to the work, such as the FCC’s refusal to fine ABC for airing Oscar-winning film Saving Private Ryan during primetime. The court noted that the FCC said it wouldn’t punish a broadcaster for airing a court hearing in which the F-word and S-word were used to argue the merits of an FCC indecency-enforcement action.
“The record simply does not support the position that the [FCC’s] new policy was based on its concern with the public’s mere exposure to this language on the airwaves,” the court said. “The ‘first-blow’ theory, therefore, fails to provide the reasoned explanation necessary to justify the FCC’s departure from established precedent.”