Citing chilling effect, court strikes down FCC policy on expletives
NEW YORK — A federal appeals court yesterday tossed out a government policy that can lead to broadcasters being fined for allowing even a single curse word on live television, concluding that the rule was unconstitutionally vague and had a chilling effect on broadcasters.
The US Court of Appeals for the Second Circuit in Manhattan struck down the 2004 Federal Communications Commission policy, which said that profanity referring to sex or excrement is always indecent.
“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,’’ the appeals court wrote.
“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,’’ it added.
The court said the FCC might be able to craft a policy that does not violate the First Amendment.
In a statement, FCC chairman Julius Genachowski said: “We’re reviewing the court’s decision in light of our commitment to protect children, empower parents, and uphold the First Amendment.’’
Carter Phillips, a Washington lawyer who argued the case for Fox Television Stations Inc., called the decision satisfying.
He said the court had “sent the FCC back to square one to start over’’ by not only tossing the FCC’s fleeting expletive policy but also a broader indecency policy as unconstitutionally vague.
Andrew Jay Schwartzman, of Media Access Project, which joined the case on behalf of musicians, producers, writers, and directors, said: “The score for today’s game is First Amendment one, censorship zero.’’
Parent Television Council president Tim Winter said the ruling was a slap in the face to parents and families.
“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,’’ Winter said in a statement.
The FCC’s fleeting expletive policy was put in place after a January 2003 NBC broadcast of the Golden Globes awards show, in which U2 lead singer Bono uttered an obscenity.
The FCC said the F-word in any context “inherently has a sexual connotation’’ and can lead to enforcement.
Fox Television Stations and other networks challenged the policy in 2006.
In yesterday’s ruling, Judge Rosemary Pooler wrote for the three-judge panel, describing the evolution of the FCC’s rules for what it regarded as indecent speech.
“The English language is rife with creative ways of depicting sexual or excretory organs or activities,’’ she wrote. “Even if the FCC were able to provide a complete list of all such expressions, new offensive and indecent words are invented every day.’’