NY federal appeals court finds FCC’s fleeting expletive policy unconstitutionally vague

A US appeals court Tuesday struck down a policy aimed at preventing “indecency” in US broadcasting as a violation of free speech protections, slamming the regulations for their “chilling effect.”

The court said the Federal Communications Commission (FCC) policy was an “unconstitutionally vague” guide that violated the First Amendment of the US Constitution.

ADVERTISEMENT

In upholding a joint 2006 complaint by broadcast TV networks, New York’s Second Circuit Court of Appeals ruled that the policy creates a “chilling effect that goes far beyond the fleeting expletives at issue.”

The commission’s indecency regulations, developed partly in response to the famous “Seven Words You can Never Say on Television” routine performed by late comedian George Carlin, was upheld by the US Supreme Court in the 1970s.

The ruling Tuesday, however, overturned the enforcement — and threat of enforcement — of massive fines for the “single, non-literal use of an expletive” found in a 2004 decision under the administration of former president George W. Bush.

The second circuit’s three-judge panel granted a review of the policy after agreeing with broadcasters that it was too “vague” and lacked clear guidelines.

That vagueness, the court said, forced broadcasters to “steer far wider of the unlawful zone” for fear of being fined, with some expletives allowed in a specific context but not others.

ADVERTISEMENT

For example, while multiple swear words in a war movie were not considered profane or indecent, the court disagreed how the FCC still deemed “a single occurrence of ‘f(expletive)'” at an awards show “shocking and gratuitous.”

FCC Chairman Julius Genachowski, in a statement issued after the court’s decision, said the commission was reviewing the ruling “in light of our commitment to protect children, empower parents, and uphold the First Amendment.”

The Parents Television Channel (PTC), a vocal FCC supporter, meanwhile slammed the court’s ruling, which it said greenlit the airing of “unedited profanity at any time of day on broadcast television.”

ADVERTISEMENT

PTC president Tim Winter called on Genachowski and the White House to immediately appeal the decision.

“Let’s be clear about what has happened here today: A three-judge panel in New York once again has authorized the broadcast networks unbridled use of the ‘f-word’ at any time of the day, even in front of children,” he said.

ADVERTISEMENT

“For parents and families around the country, this ruling is nothing less than a slap in their face,” Winter added, saying the court’s rationale was “devoid of reality” as its decision against the FCC policy’s vagueness would see practically all US laws overturned due to a lack of clarity.

The Media Access Project, a group defending free speech in US media, however hailed the move, saying the “score for today’s game is First Amendment one, censorship zero.”

The FCC’s indecency rules, said MAP’s vice president Andrew Schwartzman following the decision, “are irredeemably vague and interfere with the creative process. Today’s decision vindicates that argument.”

ADVERTISEMENT

The next stop, said Schwartzman, is the Supreme Court, adding: “We’re confident that the Justices will affirm this decision.”

The FCC’s policy grew out of Carlin’s landmark “Filthy Words” routine, which triggered a lawsuit taken to the US Supreme Court, and the top court’s ruling eventually came to shape indecency rules for all US television and radio.

The appeals court Tuesday also cautioned that any attempt to strictly regulate offensive language would likely fall short.

“The English language is rife with creative ways of depicting sexual or excretory organs or activities,” the court said Tuesday, adding that even if the FCC was able to provide a complete list of such expressions, “new offensive and indecent words are invented every day.”