Sarcasm Reigns as Court of Appeals Revisits the FCC's "Fleeting Expletives" Rule
(January 13, 2010) - Three federal judges today subjected the Federal Communications Commission to a barrage of withering sarcasm during oral argument in round 3 of Fox Television v. FCC, the broadcast industry's constitutional challenge to the agency's rule that presumptively bans even one "fleeting expletive" from the airwaves.
Judge Rosemary Pooler, presiding at the argument before the U.S. Court of Appeals for the Second Circuit, repeatedly mocked FCC attorney Jacob Lewis's claim that the agency's policy of "bending over backwards" to respect the editorial discretion of producers is sufficient to avoid the obvious First Amendment problems with its broad, vague, and subjective regime of punishing broadcasters for programming that it considers "indecent." Judge Pierre Leval, joining in the action, characterized the FCC's censorship regime as a "vast miasma" that chills all manner of valuable programming because of the agency's shifting and unpredictable censorship decisions.
Peter Hall, the third judge, was less vocal but suggested, as he had in 2006 when the case was first argued, that it is essentially irrational for the FCC to punish fleeting expletives when uttered by celebrities during televised music award programs, but not when the same expletives are repeated in news reports.
This case has its origins in a 2004 ruling by the FCC that the rock star Bono's exclamation, "this is really fucking brilliant!" at a Golden Globes Award ceremony violated the agency's rule against indecency, even though previously it had said that a "fleeting expletive" on radio or broadcast television would not be punished. The next year, the FCC backed off when it gave a pass to director Steven Spielberg's patriotic film Saving Private Ryan despite pervasive expletives. Although even one expletive is presumptively indecent, the FCC commissioners said, in the case of Saving Private Ryan the rough language was necessary to the film's artistic purpose.
In a March 2006 "Omnibus Order," however, the commissioners would not accord the same artistic deference to director Martin Scorsese's documentary on the blues, which had been broadcast on PBS stations. This second-guessing of artistic judgments was another repeated theme of Judge Pooler at today's oral argument: agreeing with attorney Miguel Estrada, who argued for NBC-Universal, that the FCC's "indecency" policy is too vague and subjective to comply with the First Amendment, she said, "That's why Saving Private Ryan gets in and The Blues does not?"
Estrada replied: "Exactly." The First Amendment, he said, doesn't permit "unbridled discretion" by government officials. Here, "we have an undeniable record of arbitrary enforcement. We like Spielberg but don't much care for Scorsese. That's not an acceptable First Amendment standard."
The broadcast industry brought a legal challenge to four parts of the 2006 Omnibus Order: indecency findings against an episode of NYPD Blue in which Detective Sipowitz used the term "bullshit" (though the agency said his use "dickhead" was OK); a segment of The Early Show in which a reality show contestant had refered to a fellow contestant as a "bullshitter"; a Billboard Music Awards show in which the actress Cher said "fuck 'em" in referring to people who thought her career was over; and the same program the following year, in which entertainer Nicole Richie commented: "Have you ever tried to get cow shit out of a Prada purse? It's not so fucking simple." Because these four incidents all involved fleeting expletives, and the agency had changed its rules after the incidents occurred, it did not impose any penalty; thus, the networks could challenge the rulings directly in court rather than pursue lengthy administrative appeals.
After the networks' lawsuit was filed, the FCC obtained a "remand," in which it reversed its rulings on NYPD Blue and The Early Show, thus leaving only the two Billboard Awards programs as actual challenges to the new presumptive ban on even one utterance of the words "fuck" or "shit," or any of their derivatives, in a radio or TV broadcast.
In 2007, the same three-judge panel of the Second Circuit that heard oral argument today handed down a decision condemning the fleeting expletives ban, on the ground that it is "arbitrary and capricious," in violation of federal administrative law. The court found that the FCC's current indecency regime, with fines of $325,000 for a single incident, was having an especially chilling effect on documentaries and other programming produced by nonprofit and community radio and TV stations.
But in 2009, the Supreme Court reversed that decision, ruling that the FCC's about-face on the meaning of "indecency" is not arbitrary and capricious, and thus does not violate the federal Administrative Procedure Act. The Court sent the case back to the Second Circuit to decide whether the FCC's current indecency policy violates the First Amendment. (See Supreme Court Clears the Way for Ending FCC Censorship of the Airwaves.)
Judging from the tenor of today's oral argument, there is little doubt that the Second Circuit will rule against the FCC. As Judge Leval said, the agency's current censorship regime is characterized by "bewildering vagueness," resulting in a chill on free speech "vastly beyond anything contemplated in Pacifica" - the 1978 case in which the Supreme Court, by a narrow 5-4 vote, first approved the FCC's indecency standard. (Pacifica involved comedian George Carlin's famous "Filthy Words" monologue, which relentlessly, if hilariously, repeated the "seven words you could never say" on the airwaves.)
Judge Leval asked Jacob Lewis whether the producer of a program in which two experts debate the pros and cons of virginity until marriage can feel sure that no indecency fine will result. "I suspect you can," Lewis answered; Leval retorted: "You suspect I can - that's very reassuring. That's the best you can say because there's no way of telling."
Lewis disagreed, pointing to "prior decisions of the Commission" allowing this sort of discussion. Judge Pooler then interjected: "You know what a good lawyer would say? If in doubt, don't run it, and that's the problem" - that is, the chilling effect of the FCC's broad and subjective censorship policies.
At the end of the argument, Judges Pooler and Leval seemed to disagree as to the scope of the First Amendment question. Judge Pooler opined that the networks think the narrow Pacifica decision marks "the end" of FCC censorship power, whereas the agency thinks it marks "the beginning." Judge Leval demurred: "We don't have to decide whether Pacifica is the end or the beginning" - only whether the FCC's current censorship policy is unconstitutional.
Either way, this case will soon be back at the Supreme Court - unless the FCC decides not to to appeal the probable Second Circuit ruling against it, and instead reverts to the narrower approach it took in the years after Pacifica. Although unlikely, such a decision by the Obama Administration could be prudent, because once the case is back at the Supreme Court, the networks as well as the free expression and arts communities will surely argue that the entire indecency regime should be scrapped.
Such arguments would be compelling. Broadcasting is no longer the "uniquely pervasive" medium it was when Pacifica was decided: today, cable TV and the Internet have full First Amendment protection; and it is unclear why a government agency should still be allowed to punish "indecent" but constitutionally protected speech in broadcasting. Moreover, the availability of parental control devices like the v-chip undermiines the child-protection rationale given in Pacifica for the FCC's power to censor. The separate opinions of the Supreme Court justices in Fox v. FCC last year suggest that there may well be a majority prepared to end 30-plus years of shifting and unpredictable FCC censorship by holding that the entire indecency regime - not just the fleeting expletives rule - is unconstitutional.
Update: 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 the brief filed by the ACLU on behalf of 20 media arts and free-expression organizations in round 3 of Fox v. FCC, click here. For more background on the FCC, indecency, and the fleeting expletives rule, see What is the Fuss About Janet Jackson's Breast?, A Huge Victory for Free Speech on the Airwaves, and Supreme Court Clears the Way for Ending FCC Censorship of the Airwaves.