FCC Indecency Policy Struck Down

A three judge panel of the Second Circuit Court of Appeals yesterday struck down the current FCC Indecency Policy on the grounds that it violates the First Amendment of the US Constitution by being too vague, "creating a chilling effect that goes far beyond the fleeting expletives at issue here." The decision appears to be unanimous (there is no indication in the ruling of any dissent). The text of the decision can be found here (it is a .pdf file).

In the background portion of the decision the Court discusses the origins of the FCC's power to impose fines and otherwise punish broadcasters from presenting "obscene, indecent or profane language by means of radio communications." Special attention is paid tho the Pacifica case, and the lower court ruling that overturned the initial ruling, which found the FCC's definition to be "vague and overbroad." That ruling noted that "the Commission's definition of indecent speech would prohibit 'the uncensored broadcast of many of the great works of literature including Shakespearian plays and contemporary plays which have won critical acclaim, the works of renowned classical and contemporary poets and writers, and passages from the Bible.' Such a result, the Court concluded, amounted to unconstitutional censorship." The Pacifica Case went to the Supreme Court which upheld the FCC's ability to censor. Writing for the Majority Justice John Paul Stevens explained that Broadcasting received the most restrictive First Amendment protection, "because of its 'uniquely pervasive presence in the lives of all Americans.'" Nevertheless the majority in the Pacifica ruling pointed out that their holding was narrow in scope: '"[N]uisance may be merely a right thing in the wrong place, – like a pig in the parlor instead of the barnyard. We simply hold that when the Commission finds that a pig has entered the parlor, the exercise of its regulatory power does not depend on proof that the pig is obscene."' In their separate concurring opinion, Justices Blackmun and Powell wrote that the ruling, "did not give the FCC 'an unrestricted license to decide what speech, protected in other media, may be banned from the airwaves in order to protect unwilling adults from momentary exposure to it in their homes,'" nor did it, '"speak to cases involving the isolated use of a potentially offensive word in the course of a radio broadcast, as distinguished from the verbal shock treatment administered by respondent here." They accepted that the FCC would proceed in a cautious manner which would minimize the chilling effect of the ruling.

Subsequently the Commission did act in such a manner, initially restricting their enforcement to the specific words in the Carlin monologue. In 1987 the policy changed on the grounds that "under the prior standard, patently offensive material was permissible as long as it avoided certain words. This, the Commission concluded, 'made neither legal nor policy sense.'" Instead they adopted a contextual standard. Nevertheless enforcement was still restrained. In various rulings the FCC held that (1) single use of an expletive "should not call for us to act under the holding of Pacifica;" that (2) "Speech that is indecent must involve more than an isolated use of an offensive word;" and that (3) "the single utterance of the F-word not indecent because it was a 'fleeting and isolated utterance which, within the context of live and spontaneous programming, does not warrant a Commission sanction.'" In 2001 the Commission issued a policy statement to put its indecency standard in more detail. In it the FCC stated that "an indecency finding involved the following two determinations: (1) whether the material 'describe[s] or depict[s] sexual or excretory organs or activities'; and (2) whether the broadcast is 'patently offensive as measured by contemporary community standards for the broadcast medium. The FCC further explained that it considered the following three factors in determining whether a broadcast is patently offensive: (1) 'the explicitness or graphic nature of the description or depiction'; (2) 'whether the material dwells on or repeats at length' the description or depiction; and (3) 'whether the material appears to pander or is used to titillate, or whether the materials appears to have been presented for its shock value.'" One thing that was explicitly stated in the policy was that "fleeting and isolated" expletives were not actionably indecent (emphasis mine).

The policy outlined in 2001 was changed in 2004. Following the 2003 Golden Globes, when Bono of U2 said "this is really, really, fucking brilliant. Really, really, great." The FCC held for the first time ever that "a single, nonliteral use of an expletive (a socalled 'fleeting expletive') could be actionably indecent." They also held that "the F-word" "inherently has a sexual connotation," and "concluded that the fleeting and isolated use of the word was irrelevant and overruled all prior decisions in which fleeting use of an expletive was held per se not indecent." The Commission also held that the broadcast was "profane" abandoning the previous interpretation which defined "profane" in terms of blasphemy. The Commission also abandoned the policy whereby fines would be levied on a per program basis and instead began treating each licensee's broadcast of a program as a separate violation, thereby multiplying the amount the Commission could collect in fines. This occurred at the same time that the maximum fine was increased by a factor of 10, from $32,500 to $325,000.

The next step along the way was the FCC's 2006 Omnibus Order which was a blanket settling of complaints – most of them generated by pressure groups like the Parent's Television Council – between early 2002 and early 2005. Four cases stood out in the Omnibus Order as examples of "fleeting expletives;" the 2002 and 2003 Billboard Music Awards, various episodes of NYPD Blue and an interview (with a contestant on Survivor) during The Early Show. The Billboard Music Awards case revolved around two separate speeches in which the words "fuck" and "shit" were used, while both the episodes of NYPD Blue and the Early Show interview dealt with the words "bullshit" and "bullshitter." The FCC claimed that the Omnibus Order would "provide substantial guidance to broadcasters and the public" about what would be considered indecent. The networks and several affiliates appealed these portions of the Omnibus Order to the Second Circuit Court of Appeals. In response the FCC requested a voluntary remand of the court, and later in 2006 produced the Remand Order which reaffirmed its decision on the Billboard Music Awards, but dismissed its fines on NYPD Blue on procedural grounds and reversed its finding on the Early Show case on the grounds that it took place during a "bona fide news interview." The Commission further stated that they "did 'not take the position that any occurrence of an expletive is indecent or profane under its rules,' allowing that expletives that were 'integral' to an artistic work or occurring during a 'bona fide news interview' might not run afoul of the indecency standard." However they stated that there was no "outright news exemption from our indecency rules."

This decision led to a second appeal of the ruling by the networks, in which the Second Circuit Court of Appeals overturned the 2004 FCC policy change on the grounds that the change was "arbitrary and capricious" in that the reasons for the change had not been adequately explained, and further that "the FCC's justification for the policy – that children could be harmed by hearing even one fleeting expletive (the so-called 'first blow' theory) – bore 'no rational connection to the Commission's actual policy,' because the FCC had not instituted a blanket ban on expletives." This was the ruling that was overturned by the Supreme Court in 2009 in a 5-4 decision. However the Supreme Court did not address the First Amendment concerns in the case and remanded the case back to the Second Circuit Court to examine that aspect of the case.

In the Discussion portion of the decision the Court addressed four major issues. In the first section they examined the idea of the "uniquely pervasive presence in the live of all Americans" that Broadcast media in general and Television in particular had which was the basis for the current restrictions of First Amendment rights when it comes to Television. They pointed out that "The past thirty years has seen an explosion of media sources, and broadcast television has become only one voice in the chorus. Cable television is almost as pervasive as broadcast – almost 87 percent of households subscribe to a cable or satellite service – and most viewers can alternate between broadcast and non-broadcast channels with a click of their remote control.... The internet, too, has become omnipresent, offering access to everything from viral videos to feature films and, yes, even broadcast television programs.... ("The number of suppliers of online video and audio is almost limitless."). As the FCC itself acknowledges, "[c]hildren today live in a media environment that is dramatically different from the one in which their parents and grandparents grew up decades ago." The Court also noted that technology, in the form of the V-Chip and the ability to block unwanted channels. However the Court was bound by the Supreme Court precedent – the Pacifica Decision – "regardless of whether it reflects today's realities." However, even though bound by Pacifica, there was room for interpretation. The FCC claimed that the Pacifica decision permits it to "exercise broad regulatory authority to sanction indecent speech. In its view, the Carlin monologue was only the most extreme example of a large category of indecent speech that the FCC can constitutionally prohibit." The Networks on the other hand hold that the decision established the limits of the FCC's ability to regulate; "In other words, they believe that only when indecent speech rises to the level of 'verbal shock treatment,' exemplified by the Carlin monologue, can the FCC impose a civil forfeiture." Regardless of where the actual limit of the FCC's ability to regulate falls, the Court held that the FCC's indecency policy is unconstitutional because it is impermissibly vague.

The second section of the Discussion examined the vagueness of the policy. The Court cited various precedents on what constitutes vagueness ("A law or regulation is impermissibly vague if it does not 'give the person of ordinary intelligence a reasonable opportunity to know what is prohibited.'") and points out that the US Constitution places a special burden on laws to be clear ("'[A] law or regulation that "threatens to inhibit the exercise of constitutionally protected rights," such as the right of free speech, will generally be subject to a more stringent vagueness test.'"). Rejecting arguments put forward by both the Networks and the FCC related to specific justifications of their position on the vagueness of the FCC ruling (most involved Reno v ACLU which ruled the Communications Decency Act to be unconstitutionally vague) the Court turned to specific cases. In the 2001 Industry Guidance, the FCC "explained that an indecency finding involved the following two determinations: (1) whether the material 'describe[s] or depict[s] sexual or excretory organs or activities'; and (2) whether the broadcast is 'patently offensive as measured by contemporary community standards for the broadcast medium.'" This lead in turn to a definition of "patently offensive;" "whether a broadcast is patently offensive depends on the following three factors: (1) 'the explicitness or graphic nature of the description or depiction'; (2) 'whether the material dwells on or repeats at length' the description or depiction; and (3) 'whether the

material appears to pander or is used to titillate, or whether the materials appears to have been presented for its shock value.'" The Court agreed with the Networks, who claimed that the policy was impermissibly vague and that the FCC's subsequent decisions added to the confusion as to what would be considered indecent. The Court cited the NYPD Blue episode in which the word "bullshit" was found to be "patently offensive", but noted that the words "dick" and "dickhead" were not found to be offensive, as were phrases like "pissed off," up yours," "kiss my ass," and "wiping his ass." "[I]n each of these cases, the Commission's reasoning consisted of repetition of one or more of the factors without any discussion of how it applied them. Thus, the word 'bullshit' is indecent because it is 'vulgar, graphic and explicit' while the words 'dickhead' was not indecent because it was 'not sufficiently vulgar, explicit, or graphic.'" According to the Court this did not give sufficient guidance of how the Commission would rule in the future. The Court noted that in the nine years following the Pacifica decision, when the "seven words" included in George Carlin's monologue were the specific definition of what was and was not prohibited, there was not one indecency complain for language. The Court argued that at least in part this was because broadcasters knew exactly what was banned. The FCC has argued that while the "seven words" list was ineffective; broadcasters simply found other ways to depict the banned material without using the specific words that were banned. "In other words, because the FCC cannot anticipate how broadcasters will attempt to circumvent the prohibition on indecent speech, the FCC needs the maximum amount of flexibility to be able to decide what is indecent." This creates the vague indiscernible standard that the Court finds unconstitutional. "If the FCC cannot anticipate what will be considered indecent under its policy, then it can hardly expect broadcasters to do so. And while the FCC characterizes all broadcasters as consciously trying to push the envelope on what is permitted, much like a petulant teenager angling for a later curfew, the Networks have expressed a good faith desire to comply with the FCC's indecency regime. They simply want to know with some degree of certainty what the policy is so that they can comply with it."

The Court also looked at the question of those occasions when use of the prohibited, and also found it to be vague. Those cases are during "bona fide" news, and in the case of "artistic necessity," where "fleeting expletives are permissible if they are 'demonstrably essential to the nature of an artistic or educational work or essential to informing viewers on a matter of public importance.'" In determining this the FCC "considers whether the material has any social, scientific or artistic value." In short, the commission sets itself up as an arbiter of what is and isn't art, and what is and isn't necessary or essential to that being of social, scientific or artistic value. Thus the use of words like "fuck" and "shit" in the movie Saving Private Ryan were "demonstrably essential to the nature of the artistic work," but the use of the same words in the documentary The Blues were not. Similarly it is left to the Commission to decide what is a "bona fide news interview" given the statement that no outright news exemption exists. According to the Court this results in a policy that "even the FCC cannot articulate or apply consistently." This was pointed out in the fine for the word "Bullshitter" used during the interview on the Early Show. In the Omnibus Order the word was considered actionable and fines were levied, but in the Remand Order it was considered to be part of a "bona fide news interview" and thus exempt from the policy. The Court pointed out that "With the FCC's indiscernible standards come the risk that such standards will be enforced in a discriminatory manner. The vagueness doctrine is intended, in part, to avoid that risk. If government officials are permitted to make decisions on an 'ad hoc' basis, there is a risk that those decisions will reflect the officials' subjective biases. Thus, in the licensing context, the Supreme Court has consistently rejected regulations that give government officials too much discretion because 'such discretion has the potential for becoming a means of suppressing a particular point of view.'"

The third section of the discussion looks at the question of whether the current policy has had the effect of chilling free speech. The answer is that there is ample evidence that the current policy has indeed had a chilling effect on free speech. The Court cited several examples both on a local and national level. These included several CBS affiliates who refused to air a repeat of the documentary 9/11 because some of the footage included firefighters using expletives and the affiliates couldn't be sure that, following the Golden Globes Order, they wouldn't be fined for airing it. Another example dealt with live broadcasts. In the 2003 Billboard Awards broadcast, FOX had taken the precaution of prescreening scripted remarks and included a delay system to bleep expletives. However Nicole Ritchie, a scheduled presenter, departed from her script and used three expletives in rapid succession. The person in charge of bleeping the remarks caught the first one, but while he was bleeping the first the other two slipped through. The FCC suggested that the network use "a more effective screening system" (according to FOX, implementing an audio delay system for all live programming would cost the network $16 million per year) but the Court noted that short of giving up live broadcasting no system is 100% effective. There is ample evidence that stations are refusing to air news or public affairs programming for fear that they will incur fines, remembering that there is no blanket news exemption, meaning that it feels that this is a discretionary, case by case judgement. There have been cases of stations refusing to cover political debates because one or more of the participants has had a history of using expletives and at least one station has stated that it will not air direct to air news coverage except in cases that "effect matters of public safety or convenience." TV networks have decided not to air episodes of shows that don't contain expletives but which do contain references to other matters related to sex or sexuality out of fears that this material might be defined as indecent. According to the Court, "By prohibiting all 'patently offensive' references to sex, sexual organs, and excretion without giving adequate guidance as to what 'patently offensive' means, the FCC effectively chills speech, because broadcasters have no way of knowing what the FCC will find offensive. To place any discussion of these vast topics at the broadcaster's peril has the effect of promoting wide self-censorship of valuable material which should be completely protected under the First Amendment."

For the reasons covered in the discussion sections of the opinion, the three judge panel of the Second Circuit Court of Appeals – the same three judges panel that had previously ruled that the policy change was arbitrary and capricious – struck down the FCC's Indecency Policy. While stating that they did suggest that the FCC could not develop a policy that would meet Constitutional scrutiny, they did state that the existing policy does fail in this respect.

I'll give my views on this case, together with the views of the Parents Television Council – which reacted pretty much exactly as you'd expect them to react – in my next post. Suffice it to say the PTC and I don't agree on anything in this matter...except maybe that the judges are based in New York, and our opinions of the significance of that is entirely different.