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A Huge Victory For Free Speech on the Airwaves

(June 4, 2007) - The U.S. Court of Appeals for the Second Circuit today invalidated the Federal Communications Commission's controversial new rule banning "fleeting expletives" from the airwaves. In a 2-1 decision, the court ruled that the "fleeting expletives" rule was "arbitrary and capricious," in violation of the federal Administrative Procedure Act, because the agency gave no reasoned rationale for its change, in 2004, from a more lenient policy of censoring expletives such as "fuck" or "shit" only when they are pervasive in a radio or TV broadcast.

The most important part of today's decision in Fox Television Stations v. FCC, however, was lengthy "dicta" (that is, statements not necessary to the result in the case). Warning the FCC not to simply invent additional rationales for its rules against "indecency" and "profanity" in broadcasting, Judges Rosemary Pooler and Peter Hall opined that the agency's entire censorship scheme is likely unconstitutional: its standards are too discretionary; and, given the pervasiveness of the words "fuck" and "shit," and their many variants, in contemporary society, it would not likely be able to show a "compelling state interest" in censoring them.

The origins of this landmark ruling lie with the FCC's decision in 2004 reversing its original finding that the rock star Bono's televised exclamation upon receiving a Golden Globe Award - "this is really, really fucking brilliant" - did not violate its indecency ban because Bono's use of the "f-word" did not refer to "sexual or excretory activities or organs." Announcing its new, harsher rule, the commissioners now said that any variant of the "f-word" inherently has a sexual connotation. Moreover, it revived its dormant ban on broadcast profanity, and decided that fleeting expletives were also profane. The about-face came in the wake of national uproar over the Janet Jackson "wardrobe malfunction" during the 2004 Super Bowl half-time show just a month earlier.

The FCC announced an exception to its new rule the next year, after Saving Private Ryan was broadcast on television. The agency said the film's pervasive cursing was "in context, not patently offensive," and was necessary for the artistic message; therefore, it was not indecent or profane.

But in an "Omnibus Order" released in March 2006, the FCC refused to apply the "Saving Private Ryan exception" to Martin Scorsese's documentary on the Blues, broadcast on PBS, because the commissioners thought Scorsese should have substituted politer words for the actual language of the musicians and others interviewed. It also found that Detective Sipowitz's use of the term "bullshit" on NYPD Blue was indecent and profane - though not his use of the word "dickhead." In the two cases that were at issue before the Second Circuit, the agency condemned as indecent and profane the phrase "Fuck 'em" (uttered by Cher during the 2002 Billboard Music Awards), and a comment by Nicole Richie during the same program the following year: "Have you ever tried to get cow shit out of a Prada purse? It's not so fucking simple."

The Court of Appeals found the fleeting expletives rule to be arbitrary and capricious because none of the FCC's rationales for the rule made any sense or were supported by evidence. The Commission's argument that listeners should not be subjected to even "the first blow" of a vulgar word was irrational in view of the fact that the agency made exceptions - sometimes but not always - for news broadcasts or films like Saving Private Ryan. Likewise, the Commission's insistence that the words "fuck" and "shit," and all of their variants, always have a sexual or excretory meaning "defies any common-sense understanding of these words," according to the court. (The judges gave as examples President Bush's remark to British Prime Minister Tony Blair that the UN should "get Syria to get Hezbollah to stop doing this shit," and VP Cheney's "widely-reported 'Fuck yourself' comment to Senator Patrick Leahy on the floor of the U.S. Senate.")

Courts prefer to rule on narrow grounds and avoid constitutional issues, so it was a measure of the Second Circuit's skepticism about the FCC's indecency regime that the judges went out of their way to indicate why the fleeting expletives rule would probably not "pass constitutional muster," and indeed, why the whole censorship system probably violates the First Amendment. First, the judges said, "we are sympathetic to the Networks' contention that the FCC's indecency test is undefined, indiscernible, inconsistent, and consequently, unconstitutionally vague." Broadcasters cannot predict when the "Saving Private Ryan" or another exception might apply. The court noted that ten years ago in Reno v. ACLU, the Supreme Court struck down, as unconstitutionally vague, an indecency ban for the Internet which used the same terms as the FCC's indecency definition: "patently offensive as measured by contemporary community standards."

The court went on to fault the FCC for requiring broadcasters to prove that expletives are "integral" to a particular show. Finally, it opined that given the proliferation of cable and satellite television, "it is increasingly difficult to describe the broadcast media as uniquely pervasive and uniquely accessible to children" - the Supreme Court's major justifications in 1978 for approving the FCC's indecency regime, in the case of FCC v. Pacifica.

The Second Circuit judges reserved particular scorn for the FCC's attempt to invent a new "profanity" standard that essentially duplicated its indecency test, and that eliminated any reference to religion. They noted that the FCC itself had previously assumed "profane" to mean "sacrilege, and nothing more," and had even urged Congress to delete "profane" from the law "because of the serious constitutional problems involved."

Judge Pierre Leval dissented, arguing that the FCC had given adequate reasons for its change of policy, and that courts must defer to the agency. He hinted, however, that if, as the two judges in the majority said, the Commission's actions have been arbitrary and irrational, then "that argument must be directed against the entire censorship structure."

In a perhaps unintentionally comic footnote, Judge Leval took issue with the FCC's determination that uses of the word "shit" are necessarily indecent. Since, "for children, excrement is a main preoccupation of their early years," he said, "there is surely no thought that children are harmed by hearing references to excrement." While Judge Leval evidently assumed that children would be harmed by hearing references to sex, with regard to excrement, he thought, "the Commission's prohibitions are not justified at all by the risk of harm to children but only by concern for good manners."

Despite these apparently trivial quibbles over whether children are harmed by hearing a word such as "shit," the decision in Fox v. FCC is monumentally important. It fully exposes the irrationality, and the excesses, of the FCC's censorship regime. But it will be a long while yet before we are fully rid of this constitutional anomaly.

Update: 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 that 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 more background on the FCC, indecency, and the "fleeting expletives" case, see FCC Faces Judicial Challenges to Its "Indecency" Regime, Federal Judges Have Hard Questions for FCC Censors, and What is the Fuss About Janet Jackson's Breast? For the friend-of-the-court brief submitted by FEPP in the Second Circuit on behalf of 20 arts, film, TV, and free expression groups, see

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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