Appellate court rules the FCC’s policy is unconstitutional
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.
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.”
The ruling, which is likely to be appealed to the U.S. Supreme Court, came in a challenge Fox filed after the FCC, under former chairman Michael J. Powell, attempted to step up indecency enforcement.
In one of the first steps in that new enforcement, the FCC decided to start regarding so-called fleeting indecency it had traditionally overlooked — usually obscenities uttered during live broadcasts — as violations of its indecency rules. It pointed to comments made by Bono in an NBC telecast of the Golden Globes in describing an award as “f***ing brilliant” as comments it now would consider as “indecent.”
The FCC also cited comments made by Cher and Nicole Richie made during the Fox’s broadcast of Billboard Music Awards shows in 2002 and 2003, respectively, as well as some episodes of ABC drama series "NYPD Blue" as violating the new standard.
While the court case involved the FCC’s enforcement of fleeting indecency rules, several broadcast lawyers said the court appeared to toss out all the agency’s indecency rules, not just those on fleeting indecency.
While Fox wasn’t fined, it and other networks argued that the FCC hadn’t provided proper notice for its change in policy before acting and then that the FCC’s indecency scheme was unconstitutionally vague.
The same appeals court threw out the FCC’s indecency order before, but on the grounds the FCC hadn’t provided proper notice before changing its standard. The Supreme Court overturned that decision, sending the case back to the appeals court.
This time the appeals court in New York responded with a far broader decision.
A second appeals court in Philadelphia is due to rule soon on FCC’s attempt to fine 20 CBS owned-and-operated stations $550,000 for the Janet Jackson Super Bowl halftime show in 2004.
Jonathan Rintels, executive director of the Center for Creative Voices in Media, praised Tuesday's ruling in a statement. The center’s board includes Warren Beatty, Steven Bochco, Blake Edwards, Tom Fontana and Sissy Spacek.
“The FCC's excessively broad, incomprehensibly ambiguous, and utterly subjective indecency policy has put creative, challenging, controversial, non-homogenized broadcast television programming at risk,” Rintels said. “In many cases, the very kinds of television programs that parents want their children to watch – high-quality documentaries, histories and dramas – have been affected. Thus, the chilling effect of the Commission's indecency policy harmed not only media artists, but the American public.”
The National Association of Broadcasters also said it was pleased.
"As broadcasters, we will continue to offer programming that is reflective of the diverse communities we serve,” Dennis Wharton, NAB's executive VP of communications, said in a statement. “We believe that responsible decision making by network and local-station executives, coupled with program-blocking technologies like the V-chip, is far preferable to government regulation of program content."
Not so pleased: Sen. Jay Rockefeller, D-WV chairman of the Senate Commerce Committee. “I am disappointed by the Second Circuit’s decision today,” said Rockefeller in a statement. “With more indecent and violent programming available than ever before, this ruling sends a troubling message. We need to do more, not less, to help parents across the country get the resources they need to protect their children from harmful programming.”