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TV Indecency Rule Struck Down by U.S. Appeals Court

U.S. Appeals Court Strikes Down FCC Indecency Policy
The FCC's approach to "fleeting expletives" can be accredited to U2 singer Bono, when he made comments at the 2003 Golden Globe Awards. Photographer: Robert Mora/Getty Images

A federal appeals court in New York struck down a U.S. Federal Communications Commission policy that penalizes profanity in broadcasting, saying it violates the television networks’ First Amendment right to free speech.

Media companies had challenged the agency’s move to fine them for “fleeting expletives,” profanities uttered spontaneously by performers during live TV broadcasts. The rule was imposed after on-air outbursts by celebrities including singers Bono and Cher.

The appeals court in Manhattan had rejected the policy in 2007, saying it was arbitrary under the law governing administrative agencies. The U.S. Supreme Court reversed that decision last year and directed the appeals court to consider the constitutionality of the policy.

“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,” U.S. Circuit Judge Rosemary Pooler wrote in the opinion handed down today by the three-judge panel in New York.

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

The four major networks -- News Corp.’s Fox, Walt Disney Co.’s ABC, CBS Corp.’s CBS and General Electric Co.’s NBC -- took part in the challenge. ABC declined to comment. CBS and NBC weren’t immediately available for comment about the ruling.

‘Live Broadcasting’

The latest decision “preserves the ability of the networks to comfortably provide live broadcasting,” said Carter Phillips, the lead lawyer for Fox Television in the case. It gives the networks “everything we could realistically ask for,” he said.

The Parents Television Council, a Los Angeles-based advocacy group that monitors television shows for sex, violence and profanity, criticized the decision.

“What truly galls me is the broadcast networks’ argument that the FCC chills free speech when they already have the ability to air indecent material after 10 o’clock, after children go to bed,” Dan Isett, director of public policy for the group, said in an interview. “Now they want to air this material at any time when children are awake.”

In her opinion, Pooler cited instances of offensive fleeting expletives on live TV. The court quoted singer Cher as saying during the 2002 Billboard Music Awards: “People have been telling me I’m on the way out every year, right? So f--k them.”

A year later, on the same program, Nicole Richie took the stage to present an award to Paris Hilton, her co-star in the Fox show “The Simple Life.”

“Have you ever tried to get cow s--t out of a Prada purse?” Richie said. “It’s not so f-----g simple.”

The appeals court noted that the FCC held these broadcasts and others in question “patently offensive” because the material was “explicit, shocking, and gratuitous, notwithstanding the fact that the expletives were fleeting and isolated.”

At the Golden Globe Awards in 2003, Bono, the lead singer of U2, accepted an award saying, “This is really, really f-----g brilliant.”

The FCC responded to complaints by declaring that fleeting expletives could be deemed actionably indecent and multiple fines could be imposed.

Supreme Court

The networks challenged the policy, and the appeals court found that the FCC had violated federal law covering how agencies make regulations. The Supreme Court reversed that decision, saying the FCC gave a sufficient explanation to comply with the law and asking the appeals court to reevaluate the indecency rules.

The appeals panel today agreed with the networks that the FCC failed to let them know which words are “patently offensive” for purposes of its policy.

“For instance, while the FCC concluded that ‘bulls--t’ in a ‘NYPD Blue’ episode was patently offensive, it concluded that ‘d--k and d--khead’ were not,” Pooler wrote.

“Other expletives such as ‘p---ed off, ‘ ‘up yours,’ kiss my a--’ and ‘wiping his a--’ were also found not to be patently offensive,” Pooler said.

Pooler also said the world has changed since the FCC first exercised its authority to regulate speech it deemed obscene in 1978, when comedian George Carlin gave a 12-minute “Filthy Words” monologue on the radio. She cited the spread of cable TV and the Internet and the availability of technology that allows parents to block shows they don’t want their children to see.

The case is Fox Television Stations Inc. v. FCC, 06-1760, U.S. Court of Appeals for the Second Circuit (Manhattan).

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