Free Speech

by Mike Masnick


Filed Under:
fcc, first amendment, indecency



Court Says FCC's Indecency Policies Violate The First Amendment

from the about-time dept

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.

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  • identicon
    NAMELESS ONE, 13 Jul 2010 @ 12:51pm

    Whats that you cant FUCKING think of children

    haha ..watch now as it becomes fucking this fucking that
    lol

    reply to this | link to this | view in chronology ]

  • icon
    jjmsan (profile), 13 Jul 2010 @ 1:07pm

    ISP liability

    Doesn't this whole argument mirror ISP's liability in taking down infringing materials?

    reply to this | link to this | view in chronology ]

    • icon
      designerfx (profile), 13 Jul 2010 @ 1:19pm

      Re: ISP liability

      eh, I took that as a no. I consider the first amendment and section 230, although similarly aligned, separate issues. ISPs have been doing it willfully even without legal requirement due to threat of lawsuit.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 13 Jul 2010 @ 1:15pm

    typo alert:

    since people who don't hear cursing on TV will almost certainly hear it online or elsewhere.

    reply to this | link to this | view in chronology ]

  • identicon
    out_of_the_blue, 13 Jul 2010 @ 1:25pm

    Go back to a list of words -- expanded now and then.

    Forcing euphemisms leads to better vocabularies. The use of common vulgarisms doesn't provide intensity or aid veracity, but *only* indicates a feeble, lazy, conventional mind, and *should* be an embarrassment.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 13 Jul 2010 @ 1:28pm

      Re: Go back to a list of words -- expanded now and then.

      Sometimes, an euphemism is simply not strong enough. For instance, if an airplane has just hit a building.

      reply to this | link to this | view in chronology ]

  • icon
    Nastybutler77 (profile), 13 Jul 2010 @ 2:08pm

    I love it when the courts talk dirty!

    You know what's funny is that you couldn't read the courts decision on the news because the language in the decision would get the news networks fined. And that, Alanis Morissette, is ironic.

    reply to this | link to this | view in chronology ]

  • icon
    Pwdrskir (profile), 13 Jul 2010 @ 2:47pm

    George Carlin lives on!!

    7 words explained by the master.

    http://www.youtube.com/watch?v=3_Nrp7cj_tM

    reply to this | link to this | view in chronology ]

  • identicon
    Dohn Joe, 13 Jul 2010 @ 3:20pm

    Americans Are So Sad

    Do you really think the importance of free speech is highlighted by your right to verbally depict excretions and sexual acts? Why isn't the bulk of this fight taking place for the right to critisize or parody when copyright and defamation laws are being rampantly misused to stifle it? Does this not create more of a damaging "chilling effect" than hearing shitfuckassbitchwhore on the tube?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 13 Jul 2010 @ 4:16pm

      Re: Americans Are So Sad

      Unholy fucktwat! Are you so dense as to see that this battle can be fought on two different fucking fronts to save our first amendment? Do you really believe that everyone is as stupid as you and can only have one crusade at a motherfucking time? You must have shit for brains.

      reply to this | link to this | view in chronology ]

    • icon
      Mike Masnick (profile), 13 Jul 2010 @ 5:19pm

      Re: Americans Are So Sad

      Do you really think the importance of free speech is highlighted by your right to verbally depict excretions and sexual acts? Why isn't the bulk of this fight taking place for the right to critisize or parody when copyright and defamation laws are being rampantly misused to stifle it? Does this not create more of a damaging "chilling effect" than hearing shitfuckassbitchwhore on the tube?

      One thing at a time... If free speech is important, it's important. Don't knock one ruling just because it's not the other ruling you want. Highlighting the importance of free speech is important.

      reply to this | link to this | view in chronology ]

    • icon
      BearGriz72 (profile), 14 Jul 2010 @ 6:39am

      Re: Americans Are So Sad

      Diaper-wearing piss cockroach, Cunt-mong licker, dick bogle boy, Piss sucker, Arse mange syphilis, slag-princess knob lobster.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 13 Jul 2010 @ 4:33pm

    shit piss fuck cunt cocksucker motherfucker and tits. thats the 7.

    reply to this | link to this | view in chronology ]

  • identicon
    PRMan, 13 Jul 2010 @ 7:36pm

    The problem...

    The big problem is that the Super Bowl and award shows are rated TV-G. They shouldn't have fleeting expletives or wardrobe malfunctions.

    If they want to change the shows to TV-MA, they can do that, but we won't be watching it.

    The problem is that they want it both ways.

    reply to this | link to this | view in chronology ]

    • identicon
      Bengie, 14 Jul 2010 @ 7:19am

      Re: The problem...

      UNRATED!! bwaa-haha

      but really, a bit of swearing isn't an issue. I would assume if there was too much swearing, people would stop watching.

      Swearing is like spices. It can liven it up, but too much tastes like shit.

      Either that, or South Park was right and the even dragon will emerge from the ground.

      reply to this | link to this | view in chronology ]

  • identicon
    Matt Schafer, 14 Jul 2010 @ 6:44am

    Restrained Enforcement

    If the FCC kept it's policy of restrained enforcement of fleeting expletives, they probably wouldn't have had their authority challenged. The court did, however, give the FCC an out saying, In tempering its opinion, the court closed the decision writing, "We do not suggest that the FCC could not create a constitutional policy, [we're holding] only that the FCC’s current policy fails constitutional scrutiny."

    http://bit.ly/cjF0Op

    reply to this | link to this | view in chronology ]

  • icon
    Technopolitical (profile), 14 Jul 2010 @ 7:03am

    good call by the Courts

    :)

    http://www.youtube.com/watch?v=3_Nrp7cj_tM
    The Seven Words by George Carlin

    Lenny Bruce is also redeemed.

    reply to this | link to this | view in chronology ]

  • identicon
    Jesse, 20 Mar 2013 @ 12:54pm

    This FCC should never have been in the business of telling people what they can an can not say on air.

    reply to this | link to this | view in chronology ]


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