[Warning: this post contains adult language. Reader discretion is advised.]
In April 2009, the Supreme Court held in a 5-4 decision that the Federal Communications Commission was within its legal authority to craft a policy punishing broadcasters for "fleeting expletives" -- those accidental, unscripted moments which make live programming so much fun, like when Nicole Richie said at the 2003 Billboard Awards: “Why do they even call it ‘The Simple Life?’ Have you ever tried to get cow s*** out of a Prada purse? It’s not so f***ing simple," when the Phillies' Chase Utley spoke at the end of the 2008 World Series parade or this beloved one from July 13, 1985 from a saucy Michigander in the early stages of her career.
The Court that day ruled that the FCC could have such a policy, but passed on whether the particular policy enacted was constitutional, remanding that issue for further consideration. In an opinion issued Tuesday, the United States Court of Appeals for the Second Circuit found the FCC's policy to be unconstitutionally vague and struck it down.
As the Court noted, here's what the policy which was being applied to fleeting expletives stated:
The FCC set forth its indecency policy in its 2001 Industry Guidance, in which the FCC explained that an indecency finding involved the following two determinations: (1) whether the material “describe[s] or depict[s] sexual or excretory organs or activities”; and (2) whether the broadcast is “patently offensive as measured by contemporary community standards for the broadcast medium.” Under the policy, whether a broadcast is patently offensive depends on the following three factors: (1) “the explicitness or graphic nature of the description or depiction”; (2) “whether the material dwells on or repeats at length” the description or depiction; and (3) “whether the material appears to pander or is used to titillate, or whether the materials appears to have been presented for its shock value.”
But as the Court noted, that hardly gives broadcasters noted as to what's off limits:
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 “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.
The English language is rife with creative ways of depicting sexual or excretory organs or activities, and even if the FCC were able to provide a complete list of all such expressions, new offensive and indecent words are invented every day. ... 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. 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.
Indeed, the Court writes, without clear standards there is madness:
The FCC’s current indecency policy undoubtedly gives the FCC more flexibility, but this flexibility comes at a price. 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....
We have no reason to suspect that the FCC is using its indecency policy as a means of suppressing particular points of view. But even the risk of such subjective, content-based decision-making raises grave concerns under the First Amendment. Take, for example, the disparate treatment of “Saving Private Ryan” and the documentary, “The Blues.” The FCC decided that the words “fuck” and “shit” were integral to the “realism and immediacy of the film experience for viewers” in “Saving Private Ryan,” but not in “The Blues.” We query how fleeting expletives could be more essential to the “realism” of a fictional movie than to the “realism” of interviews with real people about real life events, and it is hard not to speculate that the FCC was simply more comfortable with the themes in “Saving Private Ryan,” a mainstream movie with a familiar cultural milieu, than it was with “The Blues,” which largely profiled an outsider genre of musical experience.
And vague policies lead to self-censorship, which is just as bad:
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. Indeed, there is ample evidence in the record that the FCC’s indecency policy has chilled protected speech. For instance, several CBS affiliates declined to air the Peabody Award-winning “9/11” documentary, which contains real audio footage – including occasional expletives – of firefighters in the World Trade Center on September 11th. Although the documentary had previously aired twice without complaint, following the Golden Globes Order affiliates could no longer be sure whether the expletives contained in the documentary could be found indecent.... The FCC’s application of its policy to live broadcasts creates an even more profound chilling effect. In the case of the 2003 Billboard Music Awards broadcasts, Fox had an audio delay system in place to bleep fleeting expletives. 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. Instead, Fox may decide not to ask individuals with a history of using profanity to present at its awards shows. But, of course, this will not prevent someone who wins an award – such as Cher or Bono – from using fleeting expletives. In fact, the only way that Fox can be sure that it won’t be sanctioned by the FCC is by refusing to air the broadcast live.
...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 the FCC’s policy is allowed to remain in place, there will undoubtedly be countless other situations where broadcasters will exercise their editorial judgment and decline to pursue contentious people or subjects, or will eschew live programming altogether, in order to avoid the FCC’s fines. This chill reaches speech at the heart of the First Amendment.
Next stop is back to the Supreme Court. 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.
See, also, excellent recaps by Rimjob and PaulLev.
