After years of enduring inconsistent, illogical, and often plainly stupid indecency decisions from the Federal Communications Commission, the broadcasting industry has found a champion in the Second Circuit Court of Appeals. Reviewing the FCC's sanctions against Fox Television for airing several instances of the f-bomb and s-word said on the fly, the court has unanimously declared the agency's "fleeting expletive" policy to be "unconstitutionally" and "impermissibly vague" and in plain violation of the First Amendment.

"Under the current policy, broadcasters must choose between not airing or censoring controversial programs and risking massive fines or possibly even loss of their licenses, and it is not surprising which option they choose," the justices declared. "Indeed, there is ample evidence in the record that the FCC’s indecency policy has chilled protected speech."

And furthermore:

Sex and the magnetic power of sexual attraction are surely among the most predominant themes in the study of humanity since the Trojan War. The digestive system and excretion are also important areas of human attention. By prohibiting all "patently offensive" references to sex, sexual organs, and excretion without giving adequate guidance as to what "patently offensive" means, the FCC effectively chills speech, because broadcasters have no way of knowing what the FCC will find offensive. To place any discussion of these vast topics at the broadcaster's peril has the effect of promoting wide self-censorship of valuable material which should be completely protected under the First Amendment.

Ars received this opaque response from the FCC, following the ruling. "We're reviewing the court's decision in light of our commitment to protect children, empower parents, and uphold the First Amendment," Commission Chair Julius Genachowski declared.

As for us, we think this great news. Finally—a court has clearly brought the right to free expression back into this discussion. Let's review the crazy trail that led to this outbreak of sanity.

Shocking and gratuitous

For years following the Supreme Court's 1978 Pacifica decision validating the FCC's right to sanction programming that it found indecent, the agency pursued a relatively restrained course of enforcement. It took a light regulatory touch approach to the broadcast of a "single, non-literal use of an expletive," as the Second Circuit gingerly put it. "Speech that is indecent must involve more than an isolated use of an offensive word," the Commission declared in one instance.

The agency even offered a guideline sheet to broadcasters in 2001 that reiterated this stance—assuring the industry that a key consideration would be "whether the material dwells on or repeats at length" some questionable word or series of words.

But in 2004, the FCC decided to crack down, ratcheting up its stance against even a single naughty word. The excuse came when the rock singer Bono got a little out of control upon receiving the televised Golden Globe Award for Best Original Song. "This is really, really f***ing brilliant," he had the bad taste to exclaim (adding "Really, really great"—just in case you didn't get it the first time).

The "'F-word' is one of the most vulgar, graphic and explicit descriptions of sexual activity in the English language," the agency declared. It "invariably invokes a coarse sexual image" and broadcasting it on a national telecast was "shocking and gratuitous."

Now a single instance of one of these utterances was unacceptable, and soon punishments were forthcoming. These included sanctions with big fines attached against the 2002 and 2003 Fox Television broadcasts of the Billboard Music Awards, during which Cher and Nicole Richie acted like... themselves.

"I've also had critics for the last 40 years saying that I was on my way out every year," Cher explained in 2002. "So f*** 'em." In 2003, Richie had yet to get caught sitting in a Mercedes facing backwards in a freeway carpool lane while on pills, but she did have the presence of mind to ask the Billboard audience if they had "ever tried to get cow s*** out of a Prada purse? It's not so f***ing simple."

ABC's NYPD Blue and CBS's Early Show also received fines for broadcasting similar utterances, but when all three networks appealed these expensive decisions to the Second Circuit, the FCC asked for a remand, then let ABC and CBS off the hook, in CBS's case because the dirty word in question was aired during a "bona fide" news story.

Divorced from reality

With that, the Second Circuit considered the case—although only on the grounds that it violated the Administrative Procedures Act's strictures against "arbitrary and capricious" decision making. In a two-to-one decision, the justices found that it did, even calling the rulings "divorced from reality." The court argued that the FCC had failed to explain why the agency had so dramatically changed its stance.

But in April of 2009 the Supreme Court rejected the Second's ruling. "The agency's reasons for expanding its enforcement activity, moreover, were entirely rational," Justice Antonin Scalia and four other Supremes declared. "Even when used as an expletive, the F-Word's power to insult and offend derives from its sexual meaning. And the decision to look at the patent offensiveness of even isolated uses of sexual and excretory words fits with Pacifica's context-based approach."

Now, however, the case was remanded back to the Second Circuit to examine the problem from a First Amendment perspective. What's striking about this decision is that it comes very close to challenging Pacifica itself, questioning the decision's assumptions that broadcast indecency should be regulated because of its "pervasiveness" and ability to reach children.

"The same cannot be said today," the justices noted. "The past thirty years has seen an explosion of media sources, and broadcast television has become only one voice in the chorus." In addition, practically every technology now has ample software allowing parents to limit its accessibility to children. "In short, there now exists a way to block programs that contain indecent speech in a way that was not possible in 1978."

Big chill



But while the court steps back from deciding whether Pacifica itself is still constitutional, it insists that the FCC's "context-based" approach amounts to little more than a jumble of incomprehensible calls. Why, the Second asks, did the agency conclude that those Billboard shows were beyond the pale, but declared the words "dick" and "dickhead" to be acceptable? Why did the agency sanction broadcasts of the public television documentary The Blues for its airing of ripe words, but not broadcasts of Saving Private Ryan.

And even though the FCC declined to punish CBS, the court noted, the "FCC has made clear that it considers the decision to apply this exception a matter within its discretion." Thus broadcasters and their news agencies in particular should still rightly fear the Commission's uncertain and bizarre indecency policies, and they do:

During the previous proceedings before this Court, amicus curiae gave the example of a local station in Vermont that refused to air a political debate because one of the local politicians involved had previously used expletives on air. The record contains other examples of local stations that have forgone live programming in order to avoid fines. For instance, Phoenix TV stations dropped live coverage of a memorial service for Pat Tillman, the former football star killed in Afghanistan, because of language used by Tillman’s family members to express their grief. A station in Moosic, Pennsylvania submitted an affidavit stating that in the wake of the FCC’s new policy, it had decided to no longer provide live, direct to-air coverage of news events "unless they affect matters of public safety or convenience."

If these policies are allowed to stand, the court concludes, broadcasters will decline "to pursue contentious people or subjects, or will eschew live programming altogether, in order to avoid the FCC's fines."

In other words, they will censor themselves to avoid being censored by the government. "This chill reaches speech at the heart of the First Amendment."

This decision is arguably a victory for anyone who believes in freedom of expression. We can't put it better than Andrew Schwartzman of the Media Access Project. "The score for today's game is First Amendment one, censorship zero," MAP declared in a press statement.

But when we spoke with Schwartzman, he assured us that this is not the last battle in this war.

"It is a virtual certainty that the government will ask the Supreme Court to review this decision," he told Ars. "In fact, during the oral argument, the judges on the panel made it clear that they expected the decision to go back up no matter which way they came out here."