Appeals court shoots down FCC indecency rules

By Paul Bond

Good news, Bono, Cher and Nicole Richie: You may use any “fucking” language you like on live television.

That’s the gist of Tuesday’s appeals court ruling that struck down the FCC’s indecency policy for being “unconstitutionally vague.” The case stemmed from profanity uttered by celebrities during live broadcasts of awards shows, but a network attorney said the decision also applies to scripted TV. Here's the decision,

“It puts the FCC essentially back to square one,” said Carter Phillips, lead counsel for Fox Television Stations. “The commission doesn’t have a policy. It will have to come up with one that doesn’t violate the Constitution.”

Alternately, the government could appeal the U.S. Second Circuit Court decision. That would set the stage for the Supreme Court to revisit broadcast-language restrictions in place since before comedian George Carlin first uttered his seven dirty words in the early 1970s.

No decision on whether to appeal was immediately available, but commissioner Michael Copps expressed displeasure with the ruling.

“Sadly, the court focused its energies on the purported chilling effect our indecency policy has on broadcasters of indecent programming and no time focusing on the chilling effect today’s decision will have on the ability of American parents to safeguard the interests of their children,” Copps said.

He added that the FCC should “clarify and strengthen its indecency framework.”

Tuesday’s decision stems from an FCC ruling in 2006, when Copps was chairman of the panel. Current chairman Julius Genachowski was more cautious in his assessment of the decision.

“We’re reviewing the court’s decision in light of our commitment to protect children, empower parents and uphold the First Amendment,” he said.

The issue hit the courts after parents of young children complained that U2 frontman Bono, upon receiving a Golden Globe Award during the 2003 telecast, said, “This is really, really fucking brilliant.”

For the first time, FCC declared that a so-called “fleeting expletive” could be deemed indecent under its broadcast standards. That was around the time Congress authorized a tenfold increase — up to $325,000 — in related fines and the FCC began treating each licensee separately, meaning a single expletive could cost millions of dollars.

NBC Universal, CBS, Fox and others objected to the new policy, but the FCC also identified several other instances of purported broadcast indecency:

• At the 2002 Billboard Music Awards, Cher said: “People have been telling me I’m on the way out every year, right? So fuck ’em.”
• At the same event the following year, Richie asked: “Have you ever tried to get cow shit out of a Prada purse? It’s not so fucking simple.”
• A guest on “The Early Show” used the word “bullshitter” to describe a contestant on “Survivor: Vanuatu.”
• Several episodes of “NYPD Blue” used “bullshit” in the dialogue.

Fines by the FCC soared in 2004 to a record $8 million, up from just $440,000 a year earlier, and the networks cried foul.

In nixing the FCC rules, the appeals court noted that broadcast television in the 1970s was “uniquely accessible to children, even those too young to read” but that the media landscape has changed.

Parental controls like the V-chip are available, and “broadcast television has become only one voice in the chorus,” the three-judge panel said, citing Twitter, YouTube and Facebook as competing media.

As to the FCC being overly vague, the judges cited numerous examples. Why was “bullshit” ruled offensive while “kiss my ass,” “pissed off” and “dickhead” were not?

Plus, “new offensive and indecent words are invented every day,” the judges said.

They also compared a broadcast showing of “Saving Private Ryan” to the documentary “The Blues.” In the former, “fuck” and “shit” were ruled integral to the realism of the film, but in the latter, they were not.

“We query how fleeting expletives could be more essential to the ‘realism’ of a fictional movie than to the ‘realism’ of interviews with real people about real-life events,” the judges wrote.

They also cited instances when broadcasters declined to air instructive programming for fear of being fined, such as when CBS affiliates shied away from Peabody Award-winning documentary “9/11” because it contained actual audio of firefighters swearing in the burning World Trade Center buildings.

They also said fears of FCC fines caused an episode of “House” to be rewritten and for an episode of “That ’70s Show” not to be rebroadcast because of sexual themes in both, even though they contained no profanity.

The new restrictions on the FCC's ability to fine over indecent language are expected to begin in 45 days.

"But I expect the networks won't jump on the opportunity to be profane," said Phillips, the Fox attorney. "What you can rely on is that networks will protect their audience because that's who they rely on. What's clear is that the federal government is not good at censorship."