In a decision that could increase the amount of profanity on television, the U.S. 2nd Circuit Court of Appeals July 13 struck down the Federal Communication Commission (FCC’s) broadcast indecency policy, ruling that the standards the commission uses to monitor offensive language are “unconstitutionally vague.”
The case was brought by Fox, ABC and CBS and involved several instances of “fleeting expletives” on live TV.
During the 2002 Billboard Music Awards, Cher said the “f-word” and the next year on the same program Nicole Richie used the “s-word” and “f-word.” Both were broadcast on Fox.
The FCC found Fox in violation of the policy but the three-judge panel unanimously struck it down, saying the FCC’s policy did not give broadcasters fair warning of what is and is not allowed. The panel criticized what it called unequal enforcement: While FCC found Fox guilty it allowed a variation of the s-word to be broadcast on CBS’s “The Early Show.” The FCC ruled the CBS broadcast was exempt because it was a “bona fide news interview.”
The 2nd Circuit also questioned why the FCC declared the s-word on ABC’s “NYPD Blue” to be offensive while not finding other curse words on the same broadcast to be offensive.
The FCC uses a series of criteria in determining whether a program is in violation of the policy, among them whether the content is “patently offensive as measured by contemporary community standards for the broadcast medium.” The FCC argues it needs latitude in its policy because networks are constantly trying to push the envelope.
“By prohibiting all ‘patently offensive’ references to sex, sexual organs and excretion without giving adequate guidance as to what ‘patently offensive’ means, the FCC effectively chills speech, because broadcasters have no way of knowing what the FCC will find offensive,” the court ruled.
“To place any discussion of these vast topics at the broadcaster’s peril has the effect of promoting wide self-censorship of valuable material which should be completely protected under the First Amendment.”
Significantly, though, the judges noted, “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.”
Richard Land, president of the Southern Baptist Ethics & Religious Liberty Commission, said the decision will only make parenting more difficult.
“In the name of free speech, artistic expression, tolerance and self-determination, contemporary culture has grown gradually but relentlessly more coarse, more brutal and more outrageous to the point where it has all but lost its power to shock,” Land said.
“This federal court of appeals ruling will push society further down this alarming path. While parents have the responsibility to hold the television remote firmly in hand, sudden outbursts of obscene and profane language, as well as so-called equipment malfunctions, often cannot be anticipated.
FCC Commissioner Michael J. Copps, one of the five commissioners, labeled the decision “anti-family” and called for the FCC to act soon.
“In light of the uncertainty created by today’s decision,” he said in a statement, “I call on this Commission to move forward immediately to clarify and strengthen its indecency framework to ensure that American parents can protect their children from the indecent and violent images that bombard us more and more each day. These parents — millions of them — are waiting.”
Parents Television Council (PTC) called the 2nd Circuit’s ruling “unreasonable and unrealistic.”
“The judges claim the FCC’s rules aren’t clear enough about exactly which profanities, under exactly which conditions, are illegal. If this kind of illogical analysis would be applied to other areas, virtually every law on our nation’s books would be overturned for ‘lack of clarity,’” the PTC said in a statement.
“The broadcast decency law, which the Supreme Court has repeatedly upheld, is clear: broadcasters must refrain from violating community standards of decency during hours when children are likely to be in the audience.”
The ruling, PTC said, “authorized the broadcast networks to use the ‘f-word’ at any time of day, no matter how many children are in the audience.” (BP)
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