Broadcasters Successfully Challenge FCC's Indecency Expansion
July 16, 2007
In a rebuke of the policing power of the Federal Communications Commission, the United States Court of Appeals for the Second Circuit recently ruled that the FCC overstepped its authority to regulate indecent and profane content on broadcast airwaves. In Fox Television Stations, Inc. v. FCC, a 2-1 majority of the court vacated the FCC’s new policy of punishing broadcasters for airing even “fleeting” expletives.
The FCC is permitted by statute to punish broadcasters for “obscene, indecent or profane language” on radio and television. In a 1978 decision, FCC v. Pacifica Foundation, the United States Supreme Court held that the FCC could, consistent with the First Amendment, regulate indecent material such as the George Carlin “7 Dirty Words” monologue when broadcast on radio and television. However, the Court also stated that its holding “does not speak to cases involving the isolated use of a potentially offensive word, as distinguished from the verbal shock treatment administered” by Carlin in his monologue. The FCC followed that guiding principle for many years by declining to punish broadcasters for fleeting expletives.
That changed in 2004, in a case that arose from a 2002 Golden Globes show in which Bono, the lead singer of Irish rock band U2, proclaimed that his receipt of an award was “fucking brilliant.” An FCC bureau-level decision declined to punish the broadcaster, determining that the use of the word was isolated and did not meet the definition of indecent because the phrase was devoid of any sexual connotation. The full Commission reversed, holding that Bono’s statement, even though fleeting, was actionably indecent, and that any variant of “the F-word” inherently has a sexual connotation. The FCC also held that Bono’s statement was “profane,” marking the first time the FCC had interpreted profanity as something other than blasphemy.
On the basis of the Golden Globes decision, the FCC in 2006 held broadcasters liable for airing a Billboard Music Awards show in which Cher said, “People have been telling me I’m on my way out every year, right? So fuck ‘em,” and another Billboard Music Awards Show in which Nicole Ritchie said, “Have you ever tried to get cow shit out of a Prada bag? It’s not so fucking simple.” The FCC cited as precedent its decision in the Golden Globes case, and extended that holding by finding that even isolated uses of “the S-word” are presumptively indecent and profane.
On appeal, the Second Circuit in Fox held that the FCC failed to adequately explain its departure from Pacifica and decades of precedent in which the FCC had never punished broadcast stations for such “fleeting” uses of expletives. In addition, the court found that the FCC had not adequately explained why a separate ban on profanity was necessary, and that such a ban was inconsistent with prior FCC statements that a ban on profane speech may be unconstitutional. The court concluded that the new policy therefore constituted “arbitrary and capricious” rulemaking, and remanded the matter to the agency to articulate a reasoned justification for its departure from precedent.
The majority even questioned whether the FCC’s entire regulation of indecency could continue to withstand scrutiny in light of recent Supreme Court decisions extending First Amendment protection to the Internet, and the changing nature of the broadcast medium itself given the availability of new technologies such as the “V-chip.”
In a press release after the ruling, FCC Chairman Kevin Martin suggested that the court’s decision will allow Hollywood studios “to say anything they want, whenever they want.” The Chairman defended the FCC’s indecency decisions, arguing that the FCC acted “in keeping with previous court decisions regarding indecency.” The Chairman did not elaborate on this last point, but his statement appears hard to square with the court’s opinion detailing the FCC’s departure from prior precedent.
The ball is now back in the FCC’s court. Chairman Martin has been quoted as preferring to appeal the Second Circuit’s decision rather than initiate a rulemaking, in light of the court’s dicta. Alternatively, the FCC may seek en banc review by the Second Circuit. In any event, the FCC’s authority to regulate broadcast indecency has been called into serious question.
For more information, email David A. O’Connor at david.oconnor@hklaw.com or call toll free, 1-888-688-8500.