Appellate court rejects FCC's indecency policy

A federal appeals court in New York on Tuesday struck down the Federal Communications Commission’s indecency policy, siding with broadcasting companies that argued the rules were unconstitutionally vague and chilled free speech.

ABC, Fox Television, CBS and others challenged the FCC after the agency in 2004 issued greater restrictions and fines for vulgar language aired on radio and television stations.

The restrictions included the use of so-called “fleeting expletives” – defined as the single, non-literal use of a curse word. The FCC declared that such words could be “actionably indecent” following complaints about the 2003 Golden Globe awards program, during which U2’s Bono exclaimed “this is really, really, fucking brilliant.”

At the same time, Congress allowed the FCC to increase the maximum fine for each violation tenfold, from $32,500 to $325,000. And the FCC began treating each broadcast of a program in which the indecency occurred as a separate violation, further increasing the amount of fines a broadcaster could pay.

In striking down the rules, a three-judge panel of the U.S. Court of Appeals in New York City (2nd Cir.) determined that the FCC failed to clearly explain which words or expressions were indecent. The court’s 32-page ruling cited examples of words aired on shows such as “NYPD Blue” that were permitted by the FCC, along with those that were not – with the agency providing little explanation for its reasoning.

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

One example cited by the court was the reluctance of CBS affiliates to air a documentary about firefighters in the World Trade Center on Sept. 11, 2001, because the stations could not be sure whether the expletives that aired during the program could be found indecent by the FCC.

Following Tuesday’s ruling, FCC Chairman Julius Genachowski issued a statement that read: “We’re reviewing the court’s decision in light of our commitment to protect children, empower parents, and uphold the First Amendment.”

The Media Access Project, which joined the case of behalf of writers, producers, directors, and musicians, hailed the court’s ruling.

“The score for today’s game is First Amendment one, censorship zero,” policy director Andrew Jay Schwartzman said. “The FCC’s indecency rules are irredeemably vague and interfere with the creative process.”

Tuesday’s ruling came after the Supreme Court, in a 5-4 decision, upheld the FCC’s rules in 2009 as valid as a matter of government policy-making. The case was then returned to the Second Circuit to address the case’s constitutional arguments.