Fans of Aaron Sorkin might remember a show he did after "The West Wing" called "Studio 60". You might also remember that one of the storylines on "Studio 60" was the fictional UBS network fighting an FCC fine over the "Fleeting Utterance" of a single obscene word during a live news broadcast (a soldier yelling "fuck" while coming under attack by insurgents).
Well, in a case of life imitating art, the broadcast networks & the United States government have been fighting in federal court over this very issue for the last four years. It has already been before the Supreme Court once (see Adam B's front-page story from last year).
In the latest battle fought over this issue, today the US Court of Appeals for the Second Circuit struck down the FCC’s indecency policy, finding it "unconstitutionally vague."
The FCC's basis for judging something obscene post-FCC v. Pacifica Foundation, 438 U.S. 726 (1978), was always a bit convoluted, but the old policy was that words only became indecent if the context referred to a sexual or excretory function. So for example:
- Shouting "Shit!" in a fit of anger could theoretically be okay.
- But if a character on a TV show said "I'm going to go take a shit", the FCC would have a problem.
In 2004, the FCC changed the indecency policy to determine "
patently offensive" programming on three factors.
- "the explicitness or graphic nature of the description or depiction";
- "whether the material dwells on or repeats at length" the description or depiction; and
- "whether the material appears to pander or is used to titillate, or whether the materials appears to have been presented for its shock value."
As part of this, the FCC also said "shit" & "fuck" are inherently indecent, no matter the context, and the broadcasters are responsible even if the language is a fleeting or isolated utterance. After several of the broadcast networks were hit with fines for things said at award shows, ABC, CBS, NBC and FOX filed suit in response. Back in 2007, in a 2-1 Ruling, the Second Circuit Court of Appeals overturned the FCC's new rules, saying there had been no "reasoned basis for its change in policy." The FCC appealed the Second Circuit's ruling to the Supreme Court, who in April of 2009 ruled in a 5-4 opinion authored by Justice Scalia, the FCC had followed proper administrative procedures in instituting the policy.
However, the Supreme Court did not rule on the policy’s constitutionality and remanded the case back to the Second Circuit Court to say "yea" or "nay". Today, it was the ruling of a three judge panel of the Second Circuit that unanimously found the FCC's policy creates "a chilling effect that goes far beyond the fleeting expletives at issue here."
From the Wall Street Journal:
On Tuesday, the Second Circuit, in a provocative opinion, shot down the FCC policy on vagueness grounds. The court focused chiefly on how little guidance the policy gives to broadcasters on which specific words are permissible, and which aren’t. In one of the more profanity-laced court-authored paragraphs we’ve ever seen, the court wrote:
"We agree with the Networks that the indecency policy is impermissibly vague. 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 "bull—-t" in a "NYPD Blue" episode was patently offensive, it concluded that "d–k" and "d–khead" were not. . . . 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."
To show how vague & inconsistent the FCC's new policy could get, the Second Circuit's opinion cites the FCC's rulings for the network broadcast of 'Saving Private Ryan' & PBS' "Martin Scorsese Presents the Blues".
Before the FCC's change of policy, ABC aired 'Saving Private Ryan' uneditied on Veterans Day 2001 & 2002. On Veterans Day 2004, 66 ABC affiliates refused to air the movie out of fears of being fined by the FCC. As you may have noticed if you clicked on the embedded video above, the words "fuck" & "shit" are uttered in the film. Eventually, the FCC issued a ruling which said the use of "fuck" & "shit" in 'Saving Private Ryan' was not indecent, notwithstanding their previous reasoning the use of those words were always indecent, since it was "integral to the film’s objective of conveying the horrors of war through the eyes of these soldiers, ordinary Americans placed in extraordinary situations."
"Martin Scorsese Presents the Blues" was a documentary that aired on PBS, detailing the history of The Blues, that had interviews with some involved who used expletives. For that, the PBS station in San Mateo, California (KCSM-TV) was fined $15,000 since, according to the FCC's reasoning, "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."
This didn't pass the smell test with the Second Circuit.
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." Fox, 489 F.3d at 463. 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. But even if there were a perfectly benign way of explaining these particular outcomes, nothing would prevent the FCC from applying its indecency policy in a discriminatory manner in the future.
As the Supreme Court explained in Forsyth [Forsyth County, Ga. v. Nationalist Movement (91-538), 505 U.S. 123 (1992)]:
It is not merely the sporadic abuse of power by the censor but the pervasive threat inherent in its very existence that constitutes the danger to freedom of discussion. Accordingly, the success of a facial challenge on the grounds that an ordinance delegates overly broad discretion to the decisionmaker rests not on whether the administrator has exercised his discretion in a content-based manner, but whether there is anything in the ordinance preventing him from doing so.
I believe in artistic freedom. If it was up to me, I would remove almost all FCC regulations on content, and leave it up to the networks, viewers, and advertisers to decide what's acceptable for each one of them. And some parents out there may not like to read this, but it's not NBC, ABC, CBS, FOX, or my job to help you raise your children. If you don't want kids watching certain shows, then parents should be parents & supervise what their children are watching. Don't rely on the United States government to tell the rest of us what is "acceptable" programming. The argument that children need the federal government to protect them from "accidentally" seeing or hearing something on TV is absurd.
One of the stupidest damn things in government decision making is couching horrible policies as something that must be done "For The Children." It's an old, familiar song. There is never a law too stupid for certain politicians & bureaucrats if it allows them to get before a camera or send out a press release claiming they're "protecting children" from the horrors of the world. And since no one wants to be against protecting children, that leads to the next set of politicians & bureaucrats; those too chickenshit to speak up & oppose something they know is either a) unconstitutional or b) does nothing to deal with the problem it claims to address.
But is it really about the children, or preventing the rest of us from making choices others might disagree with?
