We've been following a series of cases over the past few years concerning the FCC's attempt to fine TV stations for "indecency." These cases include "fleeting expletives" like Bono cursing during an awards show ("this is fucking brilliant") to fleeting nudity like the Janet Jackson wardrobe malfunction... and, the case that just got decided: NYPD Blue's episode where actress Charlotte Ross is shown getting ready for a shower, dropping her robe and having her bare buttocks on screen for approximately seven seconds. As we noted, when the FCC originally went after ABC for this footage, it helped drive millions of people to go seek out the footage online, getting her butt a lot more attention than if they'd just let it go. Either way the case has meandered through the courts, with an early decision saying the policy was a First Amendment problem and a later ruling striking down the fine.

Some of the cases involving both fleeting expletives and fleeting nudity got merged into one along the way. The Supreme Court actually already had this case a few years ago and rejected one of the lower court decisions that found the policy "arbitrary and capricious," but failed to rule on whether the fine was legal. The appeals court, on remand, still tossed out the ruling, now saying that if the policy wasn't arbitrary and capricious, it was too vague.

The Supreme Court has now agreed (pdf), and rejected the FCC's fine.

The Commission failed to give Fox or ABC fair notice prior to the broadcasts in question that fleeting expletives and momentary nudity could be found actionably indecent. Therefore, the Commission’s standards as applied to these broadcasts were vague, and the Commission’s orders must be set aside.

That said, the Court (as it has been doing with annoying regularity these days) was very, very careful to try to make the scope of the ruling as narrow as possible. In this case, it specifically refused to rule on the First Amendment question of whether or not the FCC's indecency policy violated the First Amendment. That's too bad. Justice Ginsburg did issue a very, very brief concurrence, in which she suggested that the Court really ought to review its original ruling (FCC v. Pacifica) which established that the FCC could issue fines for indecency on TV. In other words, she seems to think that it's time to review the First Amendment question:

In my view, the Court’s decision in FCC v. Pacifica Foundation, 438 U. S. 726 (1978), was wrong when it issued. Time, technological advances, and the Commission's untenable rulings in the cases now before the Court show why Pacifica bears reconsideration.

Furthermore, even in the majority opinion, there are hints of concern about the First Amendment issues raised here:

This would be true with respect to a regulatory change this abrupt onany subject, but it is surely the case when applied to theregulations in question, regulations that touch upon “sensitive areas of basic First Amendment freedoms,” Baggett v. Bullitt, 377 U. S. 360, 372 (1964); see also Reno v. American Civil Liberties Union, 521 U. S. 844, 870–871 (1997) (“The vagueness of [a content-based regulation of speech] raises special First Amendment concerns because of its obvious chilling effect”).

Hopefully, this means that if the First Amendment question does finally come before the court, it's ready to overturn that earlier ruling. Of course, I'm still amazed at how this very same Supreme Court always seems to ignore the "obvious chilling effect" issue when it comes to cases involving copyright law... but that's another story for another post.

We've been covering the various court fights over the right of the FCC to fine TV networks over indecency -- including "fleeting" expletives and nudity. The Supreme Court heard the latest case last week (we got behind on coverage due to CES), and it certainly sounds like the Supreme Court Justices are perfectly happy with censoring the public airwaves. Reading the quotes from the transcript, it's really quite ridiculous. The Justices seem to spend a lot more time prudishly discussing what they think is appropriate, rather than the actual legal issues. Take, for example, Justice Antonin Scalia -- the supposed constructionalist who goes by the word of the Constitution:

"Sign me up as supporting Justice Kennedy's notion that this has a symbolic value, just as we require a certain modicum of dress for the people that attend this Court and the people that attend other Federal courts. It's a symbolic matter...These are public airwaves, the government is entitled to insist upon a certain modicum of decency. I'm not sure it even has to relate to juveniles, to tell you the truth."

I'm curious where in the First Amendment it says that Congress shall make no law... except wherein it involves requiring a modicum of decency. But the best part of the hearing came when, after the Justices got worked up about the idea of nudity on TV, one of the lawyers, Seth Waxman wondered about all the nudity right in the Supreme Court itself:

He said government often fails when it gets into the business of trying to understand context, as it purportedly did when it fined ABC for showing fleeting nudity on NYPD Blue.

"Right now, the commission has pending before it... complaints about the opening episode of the last Olympics, which included a statue very much like some of the statues that are here in this courtroom, that had bare breasts and buttocks," he told the Supreme Court.

Waxman then pointed around the room. "There's a bare buttock there and there's a bare buttock here."

As the crowd snickered, Scalia admitted that he hadn't noticed it before now.

Elsewhere, Justices seemed to think that, without the threat of indecency fines, the networks would be full of swearing and nudity. Of course, that's ridiculous. The networks would respond to what people actually wanted, and plenty of cable networks (not subject to such FCC rules) do not have nudity and swearing, because they know it's not appropriate for their audience. We'll see how the court eventually rules, but the questioning certainly did not bode well.

There have been a series of legal questions concerning the FCC's right to fine TV companies for "indecency" on broadcast television. If you haven't been playing along with the home game, hopefully this will catch you up. While the FCC didn't do much in the way of fines for TV for a while, over the past decade, it suddenly took an interest (mainly under the leadership of former boss Kevin Martin). So, it issued fines over things like some "fleeting expletives" during awards shows (rockers saying "fuck!" on live TV), Janet Jackson's wardrobe malfunction and NYPD Blue's decision to display actress Charlotte Ross's bare behind in a shot. Back in 2007, the Second Circuit appeals court ruled that the FCC's rules on fleeting expletives were invalid because they were arbitrary and capricious. The Supreme Court, however, reversed, saying that the rules didn't seem all that arbitrary or capricious at all. However, none of those rulings touched on the First Amendment questions. Instead, they just focused on the validity of the FCC's rules in general.

So, now all of these cases are making their way through the courts again, with the Second Circuit again rejecting the FCC's fines in both the fleeting expletives case and the NYPD Blue case, stating that even if the rules are not arbitrary and capricious, they do violate the First Amendment, and create a chilling effect on speech. The ruling on fleeting expletives was especially good, and was clearly written with the Supreme Court in mind, knowing that it would almost certainly hear this case, eventually.

Some had thought that the Obama Justice Department might just let this matter drop, as it wasn't a huge concern. However, it has now petitioned the Supreme Court to review both cases, and to support the FCC's right to censor broadcast TV.

Of course, as the Second Circuit made clear in its ruling, the whole purpose of the FCC issuing such fines is outdated and silly. It was based on the fact that only the TV networks could really reach such a wide audience and thus had to be carefully monitored. In this digital era with the internet, does it really matter if someone hears a stray curse on TV? It's just as likely that they'll find much worse online. And, in fact, as we've pointed out, the FCC's action and subsequent lawsuits have driven a ton of views of the clip of Ross's bare butt online. In fact, at one point, it was one of the top videos on YouTube. That makes the whole FCC process seem pretty pointless if the idea is to try to "block" access to this content, doesn't it?

We had just discussed how two separate appeals courts were trying to determine whether or not the FCC's indecency fines over "fleeting nudity" on TV were legal. The case involving Janet Jackson's "wardrobe malfunction" is just beginning, but the other case, involving Charlotte Ross's bare behind being shown on NYPD Blue has now concluded with the (not surprising) decision to toss out the $1.43 million fine the FCC issued against ABC. This wasn't all that surprising, given that the courts had already struck down FCC fines over "fleeting expletives," and had suggested that fleeting nudity would fall under the same analysis. Even the FCC had admitted that under the ruling concerning "fleeting expletives," the NYPD Blue fine was probably a goner. It's still appealing the original ruling about fleeting expletives, however, so it's not over yet.

Of course, the history of almost all of these cases all tracks back to the infamous Parents Television Council (PTC), the group that is famous for flooding the FCC with bogus "complaints" from its members who never actually saw the content in question, but were urged on by the PTC to send complaints. We recently had noted that PTC was coming under some serious scrutiny concerning some of its more questionable practices.

However, what we still found most amusing about this particular case is the fact that when Kevin Martin (who headed the FCC when the original fine was issued) decided to pursue this fine over Charlotte Ross's nudity, all it really did was drive a tremendous amount of interest in people seeing what the clip was about. In other words, in trying to fine ABC for "indecency," the PTC and Kevin Martin helped to publicize the video, which for a while was apparently the most popular video on YouTube. And now, not only did the PTC and Kevin Martin help millions of people learn about ways to see Charlotte Ross' bare behind, but the FCC got absolutely nothing for it, given this latest ruling.

We've written a few times about the Parents Television Council, the infamous nonprofit group that sends out alerts any time anything it considers indecent is aired on TV or shows up elsewhere that the PTC doesn't like. Back when Kevin Martin was at the FCC, the PTC actually appeared to have some influence, but since then, its influence has clearly dwindled quite a bit. And with a court recently rejecting the FCC's attempts at fining those who upset the PTC as unconstitutional, the organization is apparently struggling with being relevant. I'd also guess that a growing number of people think that PTC's fear mongering is totally ridiculous and unfounded. For example, its latest grandstanding is about the CBS TV show $#*! My Dad Says. I would guess that most people simply don't care. And that's reflected in the fact that donations are way down to the PTC, and while the group claims 1.3 million members, only about 12,000 people seem to actually be active.

However, the NY Times recently had an article that suggests things are even more screwed up for the PTC than what was already known. It includes accusations from a whistleblower who worked at the PTC that the organization would ignore petitions that were sent in, just taking donations and not doing anything with the material. To understand what apparently happened, you need to understand how the PTC works. It generally sends out hyped up FUD-filled "petitions" that it asks people to sign, with promises that the PTC will pass them on to the FCC or whoever else. Except, the accusations claim that the PTC would take the returned envelopes, take out the cash, but then never pass them on to the FCC.

For a group that tries to present itself as being super ethical, taking money and failing to live up to what you promised to do in exchange for the money seems pretty unethical.

The group's response to this seems to be to attack the whistleblower, trying to turn his request for severance after he left the organization into a claim that he was trying to extort money from them. Unfortunately for the PTC, after the LAPD investigated the accusations of extortion, it found that the guy did not commit extortion. Rather than admitting that, it seems that any time anyone brings up these questions, the PTC goes right back to accusing the guy of extortion. At some point, you'd have to think that if the PTC continues to make such charges, the guy might actually have a decent defamation claim against them....

We recently wrote about the Second Circuit appeals court ruling that the FCC's policy against "fleeting expletives" on broadcast TV was ruled unconstitutional, and that's now raising some other questions as well. A separate case, also in the same circuit, involves the question of whether or not a similar policy over "fleeting nudity" is equally problematic. As you may recall, the show NYPD Blue got a ton of attention back in 2003, for showing 7-seconds of a bare backside (which apparently was once the top rated clip on YouTube, despite it happening a few years before YouTube even existed). The FCC used a similar "fleeting nudity" policy to threaten to fine ABC affiliates for airing the show. However, the court in that case is now asking whether or not the recent ruling over expletives has any bearing on the question over nudity. Of course, you could question how "fleeting" it is for a filmed drama (as compared to the expletives, which were live events). But, at the same time, the wide availability of that same video (and, um, a ton of other much more graphic videos) to anyone with a computer might raise questions about why it even matters?

In a case that has been going on for many years now, it looks like the FCC's indecency policy has been smacked down yet again, with the Second Circuit appeals court ruling it an unconstitutional violation of the First Amendment. If you haven't been following the case, it involved FCC fines against various TV networks for "indecency," over "fleeting expletives" -- such as when Bono was quoted at an awards showing saying "this is really, really, fucking brilliant," or when Paris Hilton, also at an awards show, was quoted saying "Have you ever tried to get cow shit out of a Prada purse? It's not so fucking simple."

Initially the same appeals court found that the FCC's rules were "arbitrary and capricious," but chose not to tackle the First Amendment questions. The Supreme Court actually reversed that ruling, saying that the FCC has the right to make its own rules -- arbitrary and capricious or not. However, it also did not investigate the First Amendment questions.

So, the case went back to the Second Circuit, which has once again smacked down the FCC, saying that even if the rules aren't arbitrary and capricious, they do violate the First Amendment and create a real "chilling effect." The ruling is pretty thorough, going through the history of the FCC's attempts to regulate indecency on the public airwaves, and how the courts have made sure that the FCC was quite limited in what it could do. It remains troubled by the fact that the FCC just sort of randomly changed its policies about a decade ago, and began more aggressively fining broadcasters for such "fleeting expletives," but with the Supreme Court saying that "change" wasn't a problem, the court still says that the First Amendment prevails here.

The decision is quite interesting, in that it notes that one of the reasons why the FCC was allowed to fine indecency on TV and radio was the "pervasiveness" of those media, but that in today's internet-connected world, it makes less and less sense, since people who don't hear cursing on TV will almost certainly hear it online or elsewhere. On top of that, it notes that technology has given new power to parents to block access to "mature" content, such that the FCC might not have to watch over everything so carefully anymore.

Furthermore, it focuses on the "vagueness doctrine," in noting that if a rule against certain types of speech is too vague, it can create a real chilling effect on speech, as people don't know where the boundaries are located. And here's where it gets fun. The decision explores how the FCC decided that some words were indecent and others weren't without explaining why:

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 court also notes that back when the FCC's enforcement focused on George Carlin's famous "seven dirty words," no indecency actions were brought, because everyone knew what was and was not allowed -- even if other terms were used instead:

This strategy had its limitations -- it meant that some indecent speech that did not employ these seven words slipped through the cracks. However, it had the advantage of providing broadcasters with a clear list of words that were prohibited. Not surprisingly, in the nine years between Pacifica and the FCC's abandonment of this policy, not a single enforcement action was brought. This could be because we lived in a simpler time before such foul language was common. Or, it could be that the FCC's policy was sufficiently clear that broadcasters knew what was prohibited.

The court doesn't buy the FCC's argument that because broadcasters used other words instead, it had to make it's policy more vague, and notes that this shows "a certain futility" in the FCC's quixotic campaign against indecency. And then it adds that if things are always changing, it's not fair for broadcasters:

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.

The decision also notes that the FCC seems to randomly enforce its own rules:

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. 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.

Finally, the court notes that these chilling effects are very, very real and can already be seen:

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 court says it's possible the FCC could create a policy that is acceptable under the First Amendment, but this one does not qualify. I'm sure this will be appealed to the Supreme Court as well, but in the meantime, it's a pretty big smackdown for the FCC's attempt to fine indecency.

There are many people out there who are greatly troubled by the way the FCC "enforces" efforts against broadcast indecency -- with some even questioning whether or not it's even constitutional for the FCC to act as a public arbiter of indecency. It looks like the FCC has just hired one such person, in the form of Duke telco law professor Stuart Benjamin. Since I consider myself among those who question how indecency fines can fit with a First Amendment, this seems like a good thing -- but the reporting on it, at the link above, only focuses on the complaints about this hire. But the complaint comes from the Parents Television Council, whose main claim to fame is flooding the FCC with bogus complaints about "indecent" programming from people who didn't even see whatever it is they're complaining about. So you can understand why they might complain. If they lose the ability to create moral panics, it's harder to keep going.

Three years ago, we wrote about the "roller coaster" of indecency complaints to the FCC. Basically, there are very, very few indecency complaints, until one particular organization alerts its members to all complain at once. What's silly is that the FCC is often influenced by this, even though most of the people complaining never actually saw the TV content in question. What's even sillier is that the FCC apparently (very quietly) changed its process to make it easier for this group to stuff the ballots.

Let's start with constant FCC watcher, Matthew Lasar, who notes the latest roller coaster swing:

How come the latest stats, in this instance for the first quarter of this year, show the viewers relatively calm at 578 complaints in January, then 505 in February, followed by 179,997 in March?

179,997? Um, did we miss something? Did television really get that much more indecent in March? No worries. In these situations, we know what to do. We go over and check out the Parents Television Council's website. And sure enough, there's a plausible instigator--a PTC viewer action alert crusade against a March 8 episode of the animated comedy show the PTC just loves to hate, Fox TV's Family Guy.

Yes, Family Guy is apparently destroying the morals of America, and the FCC must do something. But even more troubling is just how PTC was able to get so many votes. You see, it didn't really like the way votes were counted in the past, so it pressured the FCC to change the way it counts to make it that much easier for PTC to stuff the ballot box in massive quantities to put extra pressure on the FCC to act. Adam Theirer explains the changes:

The FCC quietly and without major notice made two methodological changes to its tallying of broadcast indecency complaints in 2003 & 2004 that PTC requested:

• On July 1, 2003, the agency began tallying each computer-generated complaint sent to the FCC by any advocacy group as an individual complaint, rather than as one complaint as had been done previously. The advocacy group benefiting from that change had challenged the FCC to make the change by June 30th and boasted later that it was responsible for the FCC's redirection, citing reassurances of FCC commissioners.
• In the first quarter of 2004 -- the time when the Super Bowl incident with Janet Jackson occurred -- the FCC began counting complaints multiple times if the individual sent the complaint to more than one office within the FCC. This change, which had the capability of increasing by a factor of 5 or 6 or 7 the number of complaints recorded, was noted in a footnote of that quarter's FCC Quarterly Report. The footnote acknowledged that "[t]he reported counts may also include duplicate complaints or contacts..."

As I have made clear before, I have absolutely no problem with the PTC, or any other advocacy group exercising their First Amendment rights to petition their government and make their views known. What I do have a problem with -- a very big problem, in fact -- is when one group so disproportionately influences the process, especially by changing the way complaints are counted.

Even more troubling, Theirer notes, is that the FCC gave no public notice of these changes, hiding them in footnotes to reports after-the-fact (and wording the footnotes in confusing ways). And it's not like this was a change across the FCC -- it was specifically designed to further the political goals of the PTC:

More shockingly, as far as I can tell, the FCC only made these methodological changes for indecency complaints, not for any other category of complaints that the agency receives! Finally, and probably worst of all, these bogus numbers were then used by FCC officials and congressional lawmakers as supporting evidence for the supposed public outcry for more regulation of television and radio.

Regulatory capture in action. Hopefully, the new administration and the new FCC recognizes this and stops trying to have the government act as a censor for a small group of people offended that people don't know how to use the "change channel" or "power off" features on their televisions.

A significant part of FCC Chairman Kevin Martin's legacy will be the moves he made -- and tried to make -- to crack down on indecency while he was in power. The FCC went after TV broadcasters with much more vigor than under previous leaders, trying to impose big fines for "indecent" content, many of which got smacked down later by courts. Martin himself was a major advocate of a la carte cable plans, in which consumers could simply pay for individual channels, rather than bundles. This represented a significant change of tune for the FCC, which had previously held that a la carte plans would carry too much additional cost to be to consumers' benefit; Martin's interest was, presumably, the decency angle, using the threat of an a la carte mandate to get cable operators to offer so-called family tiers of inoffensive channels. Martin was unapologetic about this in a speech last week at the CES show, when he said he didn't have a problem with his actions to clean up TV, but added that he didn't believe broadband content should be regulated because it's not easily accessible to children, and because its "content you choose to select and pull down" rather than "content you push out".

Huh? This is the same Kevin Martin that wanted Congress to pass a law giving the FCC the ability to regulate decency on basic cable -- TV programming that people pay for and invite into their home. It's also the same guy that backed a quixotic plan to build a free nationwide wireless data network, complete with content filters. This is the sort of doublespeak that we've come to expect from Martin, and won't have us shedding too many tears if he's replaced before his term expires in 2011. Hopefully the next chair will be more interested in issues like competition and technology than in moral issues and buddying up to telcos.