The FCC Faces Judicial Challenges to Its "Indecency" Regime
(Sept. 29, 2006) - The Federal Communications Commission may finally be called to account in the courts for its remarkably freewheeling program of censorship over the past 30 years. Cases are now pending in the U.S. Court of Appeals for both the Second Circuit (headquartered in New York) and the Third Circuit (headquarted in Philadelphia), challenging the agency's assertion of nearly unlimited discretion to punish what it considers "indecent" or "profane" in radio and television broadcasting.
In the Third Circuit case, CBS-TV has petitioned for judicial review of a single indecency ruling, based on what was probably the best-publicized incident of momentary toplessness in history - Janet Jackson's "wardrobe malfunction" during the Super Bowl halftime show in Feburary 2004.1 The FCC's lawyers want this case to be decided first, on the assumption that the court would uphold the agency's power to suppress such presumably inappropriate displays on a TV broadcast watched by millions of American families.
The Second Circuit case is more broad-ranging and significant, because it challenges the FCC's "Omnibus Order" of March 15, 2006, which implemented the agency's new, harder line on both indecency and profanity. That new hard line bans even a single "fleeting expletive" from the airwaves, except in a few situations (the so-called "Saving Private Ryan" exception) where the FCC commissioners decide that the presumptively banned words can't be expurgated without compromising the artistic integrity of the show.
The tough new standard was first announced in 2004 when the agency reversed itself, evidently in response to political pressure, and decided that an excited exclamation, "this is really, really fucking brilliant!," by the rock star Bono at the 2003 Golden Globes Awards broadcast was both profane and indecent. Following this precedent, the FCC in its March 2006 Omnibus Order condemned dialogue containing isolated "F-words" or "S-words" in dramatic programs (including "NYPD Blue"), in a documentary (Martin Scorsese's series on "The Blues" for the Public Broadcasting Service (PBS)), and in live programming (comments by celebrities at the Billboard Music Awards show).2
The Second Circuit case squarely challenges the FCC's expansion of its censorship power to a point that clearly threatens broadcasters' ability to make fundamental artistic and editorial choices. Perhaps to avoid such a First Amendment showdown, the FCC asked the Second Circuit judges to "remand" the case for 60 days, in order to give it a chance to reconsider the four rulings that are directly at issue - two against Fox Television for fleeting expletives during the 2002 and 2003 Billboard Music Awards; one against an ABC affiliate for "NYPD Blue"; and one against a CBS affiliate for using the word "bullshittter" during "The Early Show."3
In early September, a panel of three Second Circuit judges allowed the remand, but in exchange, "stayed" the enforcement of the new "fleeting expletives" rule. A few weeks later, in response to protests from CBS about the FCC's tactics, the Third Circuit modified its schedule for briefing in the Super Bowl case. Both cases will now go forward on about the same schedule, with opening briefs to be filed in mid-November - unless the FCC decides to "moot" the Second Circuit case by reversing its rulings against "The Early Show," the two Billboard Music Award programs, and "NYPD Blue."
The FCC's Censorship Power
The FCC's unusual power to punish constitutionally protected but "indecent" expression on radio and broadcast television (but not any other medium) has its origins in the early days of broadcasting. Because of the limited capacity of the early radio spectrum, there was a need for some authority to decide who should have the privilege of a broadcast license. Structural regulation of the industry was thus assumed, and with broadcasting licenses came an obligation to serve the "public interest, convenience, and necessity."
This didn't necessarily mean that government should have the power to censor speech over the airwaves. But the notion that broadcasting enjoys less First Amendment protection than other media was well-entrenched when, in 1978, the FCC's censorship of "indecency" finally came before the Supreme Court.
The case involved an indecency finding against Pacifica radio for broadcasting George Carlin's satiric "Filthy Words" monolog - a commentary on social taboos surrounding vulgar words - during daytime hours when children might hear it. In upholding the FCC's power to punish what was clearly constitutionally protected expression, a narrow majority of five Supreme Court justices asserted that broadcasting was different: it "invaded" the home with potentially offensive content before listeners or viewers had time to switch off the set. These five justices also assumed that hearing Carlin's four-letter words would be harmful to minors. Four justices dissented.4
The five-justice majority in the Pacifica case did not really analyze whether the FCC's indecency standard is specific enough to put broadcasters on notice of what is banned or whether, by contrast, it is so vague that it is likely to chill valuable speech. The standard, basically unchanged since Pacifica, is whether the expression that's alleged to be indecent "describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities or organs."
But in 1997, in striking down a law that used this broad FCC indecency test to censor the Internet, the Supreme Court noted that the test is vague, and that a great deal of potentially "indecent" speech, from safer sex information to the Carlin monolog, would probably not be psychologically damaging to youth.5
There is thus some basis for doubting the continued viability of the Pacifica precedent, especially at a time when new communication technologies abound, so that the special censorship rules for broadcasting seem increasingly anomalous. The FCC's aggressiveness in announcing its new "zero tolerance" for words that the commissioners find offensive, combined with Congress's recent exponential increase in the amount of potential indecency fines,6 make the issue difficult for the courts to ignore. Small broadcasters and nonprofits like PBS are especially vulnerable, as one fine could wipe out their resources.
In fact, since the Omnibus Order, PBS has engaged in considerable self-censorship, not only bleeping out potentially damning words from war documentaries, but blurring the speakers' lips in case a viewer might be able to discern what was being said. In late September, one PBS station in Colorado cancelled a documentary on Marie Antoinette because of sexual content.7 In view of these well-publicized incidents, the time may finally have come for the federal courts to put a stop to the FCC's Comstockery.8
Update - On November 6, 2006, the FCC issued its "Remand Order," reversing its decisions against "NYPD Blue" and "The Early Show" but reaffirmng its findings of indecency and profanity against the Billboard Awards shows. On November 30, a coalition of 20 groups led by the Brennan Center filed a friend- of-the-court brief asking the Second Circuit to throw out the FCC's entire censorship regime. 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. See "A Huge Victory for Free Speech on the Airwaves" for details.
In March 2008, the Supreme Court granted the FCC's petition for certiorari, asking the Court to review the case. 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.
3. Technically, only four of the ten indecency findings in the Omnibus Order are ripe for court review - the four that did not include a "forfeiture" (that is, a financial penalty). The other six - including the finding against a California PBS station for broadcasting "The Blues" - were "NAL"s, or "Notices of Apparent Liability," for a forfeiture. Under the FCC's procedures, broadcasters served with an NAL must either pay the fine or file a formal "Opposition." If they file an Opposition, the agency can then sit on the case for months or even years, enabling it to evade court review.
5. Reno v. American Civil Liberties Union, 521 U.S. 844 (1997).
6. Legislation passed earlier this year increased the penalty to $325,000 per violation, and the FCC sometimes counts each individual broadcast of a network show as a separate violation.
7. Lisa de Moraes, "PBS's Lip-Reading Effort," Washington Post, July 26, 2006; Dick Kreck, "FCC Fear Cancels PBS Airing of 'Marie Antoinette,'" Denver Post, Sept. 26, 2006.
8. As head of the New York Society for the Suppression of Vice in the late 19th and early 20th century, Anthony Comstock was America's leading and most effective censor.