FCC Ban on Expletives Struck Down

By Kenneth Jost
Supreme Court Editor, CQ Press
      A federal appeals court has struck down the Federal Communications Commission’s policy banning so-called “fleeting expletives” on radio or television.
      In a unanimous ruling Tuesday [July 13], a three-judge panel of the Second U.S. Circuit Court of Appeals called the 2004 policy “impermissibly vague” and likely to result in “self-censorship” by broadcasters apprehensive of FCC penalties for broadcasting an otherwise worthwhile program with a single use of a prohibited obscenity.
      “Under the current policy, broadcasters must choose between not airing or censoring controversial programs and risking massive fines or possibly even loss of their licenses, and it is not surprising which option they choose,” Judge Rosemary Pooler wrote for the court in Fox Television Stations v. FCC. “Indeed, there is ample evidence in the record that the FCC’s indecency policy has chilled protected speech.”
      The ruling marked the second time the New York-based appeals court has struck down the FCC policy, which tightened the agency’s indecency rule to prohibit even a single use of what the Supreme Court later called “the F word” or “the S word.” In June 2007, the Second Circuit ruled that the FCC had not adequately justified the change in policy.
     In its earlier ruling, the Second Circuit voiced doubts about the constitutionality of the policy, but left the question unanswered. In 2009, the Supreme Court reversed the appeals court on the administrative law question and sent the case back for a ruling on the First Amendment issue raised by Fox and other broadcasters.
      Fox TV stations had been found liable but not penalized for broadcasts of the 2002 and 2003 Billboard Music Award programs. In the 2002 program, the entertainer Cher extemporaneously used the “F” word to refer to her critics. In the 2003 program, the TV celebrity Nicole Richie made unscripted use of both the “F” word and the “S” word in a comic dialogue with co-star Paris Hilton.
      The appeals court’s 32-page opinion cited apparent inconsistencies in the FCC’s enforcement of its rule. Pooler noted that the FCC raised no objection to the use of obscenities in the World War II movie “Saving Private Ryan,” but did object to obscenities in a public broadcasting documentary, “The Blues.” The judge speculated that the FCC was “simply more comfortable” with the themes in a “mainstream movie” than with a documentary about “an outsider genre of musical experience.”
      “Even if there were a perfectly benign way of explaining these particular outcomes,” Pooler wrote, “nothing would prevent the FCC from applying its indecency policy in a discriminatory manner in the future.”
      In its policy, the FCC had urged broadcasters to use tape delay to guard against unscripted obscenities in live programs. Pooler noted, however, that tape delay had been in use in the 2003 awards program, but the two expletives “slipped through” anyway. “Even elaborate precautions will not protect a broadcaster against such occurrences,” she wrote.
      The FCC policy includes an exception for “bona fide news programs,” but Pooler said that even so some broadcasters had dropped planned coverage of events because of fears that speakers would use an offending word. She also said that some broadcasters had decided to rewrite or not to broadcast programs with sexual themes even though no obscenities were scripted or uttered.
      Pooler closed by leaving open the question whether the FCC could create a constitutional policy. “We hold only that the FCC’s current policy fails constitutional scrutiny,” she wrote. Judges Pierre Leval and Peter Hall joined her opinion.
      The FCC had no immediate comment, but an appeal to the Supreme Court seems likely.
      For background, see William Triplett, “Broadcast Indecency,” CQ Researcher, April 16, 2004.