Updated:
Fox Broadcasting, which had been cited by the FCC for comments made by Cher and Nicole Richie during the its broadcast of Billboard Music Awards shows in 2002 and 2003, Tuesday afternoon responded to the appellate court's decision.
“We are extremely pleased with the decision handed down today by the 2nd circuit. We have always felt that the government’s position on fleeting expletives was unconstitutional,” said Scott Grogin, a Fox spokesman.
“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."
ABC, CBS and NBC told TheWrap that they would not be issuing any comment.
Previously:
A federal court tossed out the Federal Communications Commission’s indecency policy Tuesday, ruling that it violates the First Amendment and admonishing it for vague enforcement of incidents like the Janet Jackson "wardrobe malfunction" and Bono's Golden Globes f-bomb.
In a major victory for Hollywood in general and the broadcast networks in particular, the three-judge U.S. court of appeals panel said the policy is "unconstitutionally vague" and creates "a chilling effect."
The challenge was brought by Fox Television Stations, and joined by NBC, ABC and the Center for Creative Voices.
“We agree with the networks that the indecency policy is impermissibly vague,” said Circuit Judge Rosemary S. Pooler in the decision. “It results in a standard that even the FCC cannot articulate or apply consistently."
Positive reaction to the ruling was swift and, for its part, family-friendly.
"The score for today’s game is: First Amendment 1, Censorship 0,” said Andy Schwartzman, senior VP and policy director for the Media Access Project.
“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,” he said. “Today’s decision vindicates that argument. The next stop is the Supreme Court, and we’re confident that the justices will affirm this decision.”
Interestingly, the court chose to directly address the question of sex, validating it as an important "theme" in human culture.
“The absence of reliable guidance in the FCC’s standards chills a vast amount of protected speech dealing with some of the most important and universal themes in art and science. Sex and the magnetic power of sexual attraction are surely among the most predominant themes in the study of humanity. ... By prohibiting all ‘patentently offensive’ references to sex, sexual organs and excretion without giving adequate guidance … the FCC effectively chills speech because broadcasters have no way of knowing what the FCC will find offensive.”
The judges suggested the FCC could create a constitutional indecency policy -- but that the one it has doesn’t meet constitutional tests.
FCC chairman Julius Genachowski issued the following statement in response to the ruling: "We’re reviewing the court’s decision in light of our commitment to protect children, empower parents, and uphold the First Amendment.”
