NEW YORK CITY—Noting that, "we face a media landscape that would have been almost unrecognizable in 1978," the Second Circuit U.S. Court of Appeals has struck down attempts by the Federal Communications Commission (FCC) to regulate so-called "fleeting expletives" in radio and TV broadcasts.
Recognizing that in 1978, when the famous Supreme Court case of FCC v. Pacifica Foundation —better known as the "seven dirty words case"—was decided, "Cable television was still in its infancy. The Internet was a project run out of the Department of Defense with several hundred users. Not only did Youtube, Facebook, and Twitter not exist, but their founders were either still in diapers or not yet conceived," a unanimous panel of the Second Circuit ruled on July 13 that the two broadcast media are not now the "uniquely pervasive presence in the lives of all Americans" that the Supreme Court in Pacifica found them to be, and which provided the high court with its rationale to treat radio and TV differently than other mass media when it came to "indecent" speech.
At issue here is Fox Television Stations, et al v. FCC, a long-running case which the Second Circuit originally decided on technical grounds—whether the FCC had violated the federal Administrative Procedures Act by suddenly classifying singular, unplanned uses of words like "fuck" and "shit" in live broadcasts as actionably indecent after the commission had ignored uses of those and similar words for more than 20 years. The Supreme Court reversed the Second Circuit decision and remanded it to reconsider, among other things, the First Amendment arguments raised by the Petitioners.
Before making its most recent ruling, Circuit Judge Rosemary Pooler, writing for herself and fellow panelists Pierre Leval and Peter Hall, traced the background of the FCC's attempts to squelch "indecent speech" on the airwaves, noting that Congress in 1960 authorized the FCC to impose civil forfeitures on broadcasters for violation of the U.S. Criminal Code Sec. 1464, but that the commission had used its power judiciously throughout, among others, the Nixon, Ford, Reagan, Bush I and Clinton years. But in 2004, under the chairmanship of Republican Michael Powell, Colin Powell's son, the FCC radically changed course after U2 singer Bono, upon receiving a 2003 Golden Globe award, exclaimed that the honor was "really, really fucking brilliant."
Creating what it called the "Golden Globes Order" in 2004, the FCC decided that "the 'F-Word' is one of the most vulgar, graphic, and explicit descriptions of sexual activity in the English language," and therefore "inherently has a sexual connotation," and concluded that despite its many previous decisions that the "fleeting use of an expletive" was not indecent, the commission would reverse 20-plus years of hands-off and begin fining broadcasters for any mention of the "seven dirty words," no matter how isolated or in what context the word was used. (Obviously, Bono didn't have actual intercourse in mind when he uttered his exclamation—nor did actress/socialite Nicole Richie when she complained, during the 2003 Billboard Music Awards, "Have you ever tried to get cow shit out of a Prada purse? It's not so fucking simple.")
Judge Pooler noted that even in the panel's previous decision on this matter, it had noted that panelists were "skeptical that the Commission [could] provide a reasoned explanation for its 'fleeting expletive' regime that would pass constitutional muster"; had expressed sympathy for "the Networks' contention that the FCC's indecency test [wa]s undefined, indiscernible, inconsistent, and consequently, unconstitutionally vague"; and were also troubled that the FCC's policy appeared to permit it to "sanction speech based on its subjective view of the merit of that speech"—this last based on the FCC's decision that use of the sanctioned words in "artistic works" (like Steven Spielberg's movie Saving Private Ryan) or a "bona fide news interview" were okay.
In the "discussion" portion of the Second Circuit's decision, it noted that the mass communication landscape had changed radically since Pacifica had been decided, with almost 87 percent of households now subscribing to cable or satellite service, as well as near-universal penetration of the internet into Americans' personal and work lives. It also noted that thanks to inventions such as the V-chip for televisions and filtering software for computers, parents had much greater control over what information they would allow their children to see or hear than ever before.
Still, the panel said, it was bound by what the Supreme Court had decided, not what it might decide in light of societal changes—and quoted from Agostini v. Felton, the same Supreme Court decision the Third Circuit had used to overturn Judge Gary Lancaster's dismissal of the charges against Extreme Associates in 2004.
But the Second Circuit decided it didn't have to worry about overturning Pacifica; the FCC's 2004 directive violated one of the fundamentals of legal scholarship: It was unconstitutionally vague.
"We agree with the Networks that the indecency policy is impermissibly vague," Judge Pooler wrote. "The first problem arises in the FCC's determination as to which words or expressions are patently offensive. For instance, while the FCC concluded that 'bullshit' in a 'NYPD Blue' episode was patently offensive, it concluded that 'dick' and 'dickhead' were not. Other expletives such as 'pissed off,' 'up yours,' 'kiss my ass,' and 'wiping his ass' were also not found to be patently offensive. The Commission argues that its three-factor 'patently offensive' test gives broadcasters fair notice of what it will find indecent. However, in each of these cases, the Commission's reasoning consisted of repetition of one or more of the factors without any discussion of how it applied them. Thus, the word 'bullshit' is indecent because it is 'vulgar, graphic and explicit' while the words [sic] 'dickhead' was not indecent because it was 'not sufficiently vulgar, explicit, or graphic.' This hardly gives broadcasters notice of how the Commission will apply the factors in the future." [Citations omitted here and below.]
At base, then, the issue goes to the heart of how our constitutional republic was founded: As a "government by laws, not by men." Broadcasters need to know when they're breaking the law; they shouldn't have to depend on the whims of some FCC inspector—or on the number of complaints the commission receives from dedicated censorship groups like Parents Television Council or Family Research Council.
Moreover, the court realized that "new offensive and indecent words are invented every day," and that while for many years, the FCC had concentrated on merely the "seven dirty words" of the George Carlin monologue that gave rise to the Pacifica case, the court pointed out that, "The English language is rife with creative ways of depicting sexual or excretory organs or activities," and the FCC could hardly list every one of them even if it wanted to.
In a burst of illogic, however, the FCC had wanted to turn that lack of a list into an excuse for harsher regulation.
"The FCC argues that a flexible standard is necessary precisely because the list was not effective—broadcasters simply found offensive ways of depicting sexual or excretory organs or activities without using any of the seven words," the appeals court explained. "In other words, because the FCC cannot anticipate how broadcasters will attempt to circumvent the prohibition on indecent speech, the FCC needs the maximum amount of flexibility to be able to decide what is indecent. The observation that people will always find a way to subvert censorship laws may expose a certain futility in the FCC's crusade against indecent speech, but it does not provide a justification for implementing a vague, indiscernible standard. If the FCC cannot anticipate what will be considered indecent under its policy, then it can hardly expect broadcasters to do so. And while the FCC characterizes all broadcasters as consciously trying to push the envelope on what is permitted, much like a petulant teenager angling for a later curfew, the Networks have expressed a good faith desire to comply with the FCC's indecency regime. They simply want to know with some degree of certainty what the policy is so that they can comply with it. The First Amendment requires nothing less."
But it turns out that even when the FCC does have a list, it (unconstitutionally) equivocates anyway. The Second Circuit pointed out the disparities of the FCC's reasoning in finding that Bono's use of "fucking" was "shocking and gratuitous," but the repeated use of that and other "indecent" words in Saving Private Ryan was not actionable because, "The use of numerous expletives was integral to a fictional movie about war, but occasional expletives spoken by real musicians were indecent and profane because the educational purpose of the documentary 'could have been fulfilled and all viewpoints expressed without the repeated broadcast of expletives'," the court wrote, quoting from its own previous opinion in the case.
"The FCC created these exceptions because it recognized that an outright ban on certain words would raise grave First Amendment concerns," the court deduced—which led Reason magazine's Jacob Sullum to opine online that there's little difference between the vagueness of the FCC's indecency policy and the Supreme Court's Miller decision on obscenity.
"The FCC’s current indecency policy undoubtedly gives the FCC more flexibility, but this flexibility comes at a price," the court correctly divined. "The 'artistic necessity' and 'bona fide news' exceptions allow the FCC to decide, in each case, whether the First Amendment is implicated. The policy may maximize the amount of speech that the FCC can prohibit, but it results in a standard that even the FCC cannot articulate or apply consistently. Thus, it found the use of the word 'bullshitter' on CBS’s The Early Show to be 'shocking and gratuitous' because it occurred 'during a morning television interview,' before reversing itself because the broadcast was a 'bona fide news interview.' In other words, the FCC reached diametrically opposite conclusions at different stages of the proceedings for precisely the same reason – that the word 'bullshitter' was uttered during a news program. And when Judge Leval asked during oral argument if a program about the dangers of pre-marital sex designed for teenagers would be permitted, the most that the FCC's lawyer could say was 'I suspect it would.' With millions of dollars and core First Amendment values at stake, 'I suspect' is simply not good enough."
And it's this uncertainty that's at the heart of the Second Circuit's decision.
"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," Judge Pooler wrote, having earlier noted that along with the increased FCC regulation, Congress increased ten-fold the fines the FCC can levy, from the original $32,500 to a whopping $325,000—and the FCC itself changed its rules so that that fine can be levied not only on the network, but on every affiliate that broadcasts the "offending language," allowing the possibility of millions of dollars in fines from a single incident.
Moreover, the court noted, the broadcasters' technology isn't up to the task the FCC had created for it.
"In the case of the 2003 Billboard Music Awards broadcasts, Fox had an audio delay system in place to bleep fleeting expletives," the court acknowledged. "It also pre-cleared the scripts of the presenters. Ritchie, however, departed from her script and used three expletives in rapid sequence. While the person employed to monitor and bleep expletives was bleeping the first, the following two slipped through. Even elaborate precautions will not protect a broadcaster against such occurrences. The FCC argues that Fox should simply implement a more effective screening system, but, short of giving up live broadcasting altogether, no system will ever be one hundred percent effective."
That fact, coupled with the possible millions of dollars in fines, would likely doom live broadcasts of entertainment events, the court opined, and possibly even news shows.
"This chilling effect extends to news and public affairs programming as well," Judge Pooler wrote. "Broadcasters may well decide not to invite controversial guests on to their programs for fear that an unexpected fleeting expletive will result in fines. The FCC points to its 'bona fide news' exception to show that such fears would be unfounded. But the FCC has made clear that it considers the decision to apply this exception a matter within its discretion. Otherwise, why not simply make an outright news exception?" [Emphasis in original.]
Among programming already affected, according to testimony and affidavits, were a Vermont political debate, the memorial service for fragged war hero/former football star Pat Tillman, and in Moosic, Pennsylvania, one station's decision not to cover most live newsworthy events "unless they affect matters of public safety or convenience."
And recall, the FCC's policy doesn't just limit it to the "seven dirty words"; the commission claimed the power to prohibit any content that "describe[s] or depict[s] sexual or excretory organs or activities," and is "patently offensive as measured by contemporary community standards for the broadcast medium." Hence:
"The chill of protected speech has even extended to programs that contain no expletives, but which contain reference to or discussion of sex, sexual organs, or excretion," the court found. "For instance, Fox decided not to re-broadcast an episode of 'That 70s Show' that dealt with masturbation, even though it neither depicted the act or discussed it in specific terms. The episode subsequently won an award from the Kaiser Family Foundation for its honest and accurate depiction of a sexual health issue. Similarly, an episode of 'House' was re-written after concerns that one of the character's struggles with psychiatric issues related to his sexuality would be considered indecent by the FCC."
Finally, in the concluding paragraphs of its decision, the Second Circuit waxed philosophic—and made a statement that courts at every level throughout the land should take to heart.
"As these examples illustrate, the absence of reliable guidance in the FCC's standards chills a vast amount of protected speech dealing with some of the most important and universal themes in art and literature," the Second Circuit recognized. "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." [Emphasis added.]
One can only imagine how the course of the Stagliano obscenity trial might have been changed (if it would have occurred at all) had the District of Columbia Circuit recognized that squirting and even enemas faux-performed with milk are "an important area of human attention" and part of natural human behavior!
Or as Jacob Sullum wrote, "Even if the sex acts depicted in the films that are cited in Stagliano's indictment were highly unusual, there is simply no principled basis for declaring that milk coming out of a woman's butt is obscene, while semen shooting from a man's penis (featured in nearly every mainstream porn film with male performers) is not. This is not justice; this is a joke."
The Second Circuit, however, refrained from laughter, concluding with what the FCC could easily interpret as a ray of hope—if it hadn't already concluded, as some news stories have reported, that it will appeal the current ruling.
"For the foregoing reasons, we strike down the FCC's indecency policy," the opinion's last paragraph reads. "We do not suggest that the FCC could not create a constitutional policy. We hold only that the FCC’s current policy fails constitutional scrutiny."
Actually—and we suspect the Second Circuit knows this—it probably would be impossible for the FCC to craft a constitutionally-acceptable indecency policy, considering that, as the Supreme Court ruled in the Communications Decency Act case, indecency is First Amendment-protected even if obscenity (allegedly) is not. But that's a problem for another day.
Several groups and commentators cheered the ruling.
"Technology, the 2nd Circuit observed, has radically changed since 1978, including the growth of cable television and the advent and expansion of the Internet as a popular medium," David L. Hudson, Jr. of the First Amendment Center observed. "Internet access has rapidly become pervasive as well. Children today are more versed in online media than many of their parents. All this pervasiveness and accessibility makes one wonder whether the second-class treatment of the broadcast medium makes sense in this 'brave new world.' The 2nd Circuit suggested that it didn't make sense."
"That ruling is good news for parents, consumers and citizens," wrote Dr. Marty Klein, author of the ground-breaking America's War on Sex, for the San Jose Mercury News. "Not because we desperately need to hear coarse language on TV, but because we desperately need to know that our media isn't being censored according to someone's point of view. And because broadcasters need to know what they are allowed to say. And because parents deserve the right to decide what their children will see and hear, rather than the government. This is a court decision reminding us that we are a nation of laws, not subjective application of laws... [T]he FCC doesn't want to just censor offensive words. It's the ideas behind the words. Ideas that may surprise, shock or disgust some people. Americans need the right to express — and experience — such ideas."
"Next stop is back to the Supreme Court," wrote DailyKos's Adam B. "Of the eight returning Justices, Justice Ginsburg indicated she'd strike down the policy, Justice Thomas may use this as an opportunity to question whether the FCC has any authority whatsoever to regulate speech, and the other Justices were silent as to the question. But this is a strongly pro-speech Court, and I can't imagine there are five votes to uphold the FCC's policy."
Needless to say, the religio-conservative censorship groups were less than pleased with the decision—and apparently clueless as to its basis.
"While understanding the difficult challenge faced by broadcasters who could be charged with 'fleeting' indecency violations over which they had little or no control," said Dr. Frank Wright, president of the National Religious Broadcasters Association. "the court has unfortunately created an indecency loophole through which you can drive a truck."
"Let's be clear about what has happened here today," wrote Tim Winter, president of the Parents Television Council, the group that filed over one million complaints about the half-second exposure of Janet Jackson's nipple during the 2003 Super Bowl half-time show, on July 13. "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. The Court substituted its own opinion for that of the Supreme Court, the Congress of the United States, and the overwhelming majority of the American people. For parents and families around the country, this ruling is nothing less than a slap in their face... Today's ruling comes as absolutely no surprise, given the hostile tenor of the judges during oral arguments. Members of the Second Circuit panel entered the courtroom that day wearing their intentions clearly on their sleeves. What does come as a surprise is the rationale of the opinion, which is devoid of reality. The Court's illogical analysis would require the overturning of virtually every law on our nation's books for lack of clarity."
(Um... no—but PTC is urging the administration and FCC chairman Julius Genachowski to appeal the decision.)
"This ruling undermines decency standards which have been around for decades and allows broadcasters to barrage our families in their homes with programming that is profane at whatever time, regardless if there are children in the broadcast audience," wrote Concerned Women for America CEO Penny Nance, who moderated the "Victims of Pornography Summit" several years ago. "Broadcasters will have an unfettered license to continue their trend of unhealthy and lurid entertainment. By eviscerating the FCC's decency policy, these judges thumbed their noses at Congress, the FCC, and American families."
"A federal broadcast license is a privilege held in the public trust," added Jan LaRue, the group's chief counsel. "Pumping sewage into American homes during the family hour violates that trust."
"There's no other way to say this: The ruling is idiocy," charged Brent Bozell, head of the far-right Media Research Center. "These judges clearly have a slant toward Hollywood excess. Pooler's opinion mocked the FCC for suggesting TV executives are more interesting in sleazy ratings gambits than decency... Someone as naive–no, someone as ignorant–as this should not be writing opinions. I suspect the industry heads burst out laughing when they read it... [T]hey've spent years now and fortunes of money advocating in court for the right to proclaim profanities at children in every hour of the broadcast day, and when they win, they suggest they never intend to push that envelope? Please."
Despite the right's paranoid assumption that daytime TV will soon be rife with programs like "Dora the Fuckin' Explorer," the simple fact is, the FCC's indecency policy has never worked well and has always been unconstitutional—and some members of the Supreme Court have certainly suggested, in concurrences and dissents to the high court's previous opinion in this case, that it's high time to change or abolish it. Now, let's see if they do.