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Federal Judges Have Hard Questions for FCC Censors

(December 20, 2006) - Three federal judges today expressed skepticism about the legitimacy of the Federal Communications Commission's "indecency" censorship regime. In what may have been a first for the federal courts, two of the three judges also did not shy away from uttering the word "fuck," which the FCC says is almost always indecent and profane, and therefore banned from broadcast TV and radio, in the course of the appellate argument.

This case arose after the FCC issued an "Omnibus Order" in March 2006, finding "apparent liability" for indecency and profanity against ten broadcasters, including a small PBS station in California that had aired Martin Scorsese's documentary, "The Blues." Four of the rulings were unaccompanied by fines, thereby allowing the broadcasters to appeal directly to the federal courts rather than filing an "opposition" within the agency.

After the case was filed, the FCC reconsidered these four rulings, and reversed two of them - against "NYPD Blue" for using the word "bullshit" in one episode, and against "The Early Show," where a reality TV participant uttered the word "bullshitter." But two indecency/profanity findings without fines remained, against Billboard Award shows in which the celebrities Cher and Nicole Richie had used naughty words. (Cher, at the 2002 Billboard broadcast, had said "Fuck 'em" in response to her critics; Richie, the following year, had commented on one program: "Have you ever tried to get cow shit out of a Prada purse? It's not so fucking simple.")

The FCC has argued that the case before the U.S. Court of Appeals for the Second Circuit is a narrow one, relating solely to its findings against the Billboard shows, and that it would be improper for the judges to consider the broader implications of its new rule against "fleeting expletives." The rule was first announced in 2004, in a case involving Bono's use of the phrase "fucking brilliant" at a Golden Globe Awards program. Before that, fleeting expletives were not presumptively banned.

The judges - Rosemary Pooler, Peter Hall, and Pierre Leval - did not seem impressed by this argument, and the attorney representing the FCC, Eric Miller, soon abandoned it. Miller conceded that the court would necessarily have to consider the legality of the fleeting expletives rule, because the FCC had relied on the rule in its rulings against the Billboard shows.

The three judges peppered Miller with hypothetical questions about the potential reach of the fleeting expletives rule. "Why isn't this a sword of Damocles hanging over every TV station?" Judge Hall asked. Suppose that broadcasters reporting on this case "pick up on the portion of Mr. Phillips' [the attorney for Fox's] argument," and "the use of the words 'fuck' and 'shit' are actually broadcast over the news tonight; is that going to be subject to FCC handslapping?" Miller assured him it would not - even though the FCC has said there is no blanket exception from the fleeting expletives ban for news. Let's suppose they rebroadcast the Cher or Nicole Richie clips, Judge Hall asked.

Miller responded that the FCC is not in the business of second-guessing the news and editorial judgments of broadcasters, which brought forth further skepticism from the judges. "So why can't they call anything news?" Judge Pooler asked. "Are you telling the networks that they just have to make some cockamamie claim" that their program is journalism in order for the FCC to defer to their judgment?

One of the more ironic moments came when Miller tried to defend the FCC's policy of not giving broadcasters rulings in advance. Such prior review would amount to censorship, he explained. Judge Hall shot back: "What's the difference between that and 'if you guess wrong, gotcha'?" Miller answered that stations don't have to guess, because the FCC's decisions over the years have created a "mosaic" of law from which they can predict what the agency will consider "patently offensive."

The judges seemed to agree that it would be inappropriate for FCC commissioners to make decisions based on their perception of the artistic merit of different shows. But Judge Leval tried to make a distinction between judgments about merit and about whether, under "contemporary community standards," a show is "patently offensive." "Would the public be offended to learn that a judge of this court said 'fuck' on the bench?" he asked. He suggested that it would depend on whether the taboo word was uttered gratuitously, or in the context of an argument in a case before the court.

The judges also had hard questions for Carter Phillips, arguing for Fox TV, which had broadcast the two Billboard shows. Judge Leval wanted to know why, under an indecency censorship system that has been in place ever since the Supreme Court approved it in the 1978 case of FCC v. Pacifica, the agency couldn't decide to ramp up the level of enforcement. Phillips had a two-part response.

First, the FCC's change in policy, and its indecency rulings against the Billboard shows, were "arbitrary and capricious," in violation of the law governing federal administrative agencies. Because the ban on fleeting expletives is not absolute, but only a strong presumption (the film "Saving Private Ryan" being the best-known exception), broadcasters are left guessing as to where to draw the line. An example of the "in terrorem" effect was the refusal of many CBS affiliates, after the 2004 rule change, to air a documentary on the events of September 11, 2001. 20% of the U.S. population was precluded from hearing the show, which had aired twice, uncensored, before the FCC changed its rules.

Phillips's second argument was that the FCC's indecency regime is unconstitutional because it censors First Amendment-protected expression and the agency has not shown any compelling need to do so. It has not demonstrated any "harm to minors" from hearing a fleeting expletive, and in any case, the desire to shield youngsters from exposure to coarse language is futile in view of its pervasiveness in cable TV, movies, the Internet, and print. Judge Pooler seemed sympathetic to this argument, noting that parents have the responsibility to control their children's TV viewing: "Why not tell parents to get those televisions out of the bedroom? I find it disingenuous [for the FCC] to point to the fact that parents let children have unmonitored TV as a justification for the FCC to go galloping to the rescue."

"Ditto for computers," she added.

Several times during the argument, Judge Pooler noted that courts are conservative and will not reach a constitutional issue if they can decide a case on some narrower ground. In consequence, these judges will be inclined - if, as seems to be the case, they are troubled by the FCC's fleeting expletives rule - to vacate the the two Billboard decisions and direct the agency to conduct further proceedings. But as Phillips pointed out at the end, his narrow administrative law argument and his broad constitutional argument really dovetail. Whether judged as a a matter of constitutional or administrative law, the FCC cannot justify its ban on fleeting expletives or its subjective and unpredictable censorship regime.

Although everyone seemed to agree that the Supreme Court's Pacifica decision is still "good law" and therefore must be followed by the appeals court, Phillips pointed out that the decision is "excruciatingly narrow" and does not prevent the court of appeals from taking a hard look at the vagueness and arbitrariness of the entire FCC censorship scheme. Once the court takes that hard look, it might just decide that government officials have no business trying to keep vulgar words off the airwaves.

Update: On June 4, 2007, the U.S. Court of Appeals for the Second Circuit decided that the FCC's "fleeting expletives rule" is "arbitrary and capricious" and also suggested that the entire FCC censorship regime violates the First Amendment. On April 28, 2009, the Supreme Court reversed the Second Circuit on the statutory issue, but left the door open for a ruling that the FCC's current indecency regime violates the First Amendment. See "Supreme Court Clears the Way for Ending FCC Censorship of the Airwaves." On July 13, 2010, the Second Circuit ruled that the FCC's indecency policy is unconstitutionally vague, thereby failing to put broadcasters on notice of what is banned, and chilling free expression. See "FCC's Censorship of Indecency is Unconstitutional."

On June 27, 2011, the Supreme Court granted the government's petition for review of the Court of Appeals ruling, as well as another Second Circuit decision that struck down an indecency finding against "NYPD Blue" for showing a few moments of female nudity. On June 21, 2012, the Court vacated the FCC's orders on narrow due process grounds, without reaching the First Amendment issues. See The FCC and Indecency: The Supreme Court Decides Not to Decide.

For background on the FCC's indecency regime, see "What is the Fuss About Janet Jackson's Breast?", "America's Culture Czars", and "FCC Faces Judicial Challenges to Its "Indecency" Regime." For the friend of the court brief on behalf of the Brennan Center and 19 other organizations in this case, go to

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The Free Expression Policy Project began in 2000 as a project of the National Coalition Against Censorship, to provide empirical research and policy development on tough censorship issues and seek free speech-friendly solutions to the concerns that drive censorship campaigns. In 2004-2007, it was part of the Brennan Center for Justice at NYU School of Law. Past funders have included the Robert Sterling Clark Foundation, the Nathan Cummings Foundation, the Rockefeller Foundation, the Educational Foundation of America, the Open Society Institute, and the Andy Warhol Foundation for the Visual Arts.

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