Indecency Rule Voided
Richmond Times - Dispatch
Jul 16, 2010
WASHINGTON - A federal appeals court struck down the government's longstanding prohibition against indecency on broadcast television and radio and ruled that the policy was "unconstitutionally vague" and created a "chilling effect" that violated the First Amendment protection of free speech.
The ruling by a three-judge panel of the U.S. 2nd Circuit Court of Appeals in New York is a major victory for the broadcast TV networks, which jointly sued the Federal Communications Commission in 2006 after a tougher crackdown on indecency over the airwaves. The suit stemmed from an FCC ruling in March 2006 that unscripted expletives uttered impromptu on live broadcasts, such as awards shows, violated indecency rules and were subject to fines.
The same court found in 2007 that the FCC's policy on such so- called "fleeting expletives" was "arbitrary and capricious." The FCC appealed the ruling, and the Supreme Court upheld the crackdown on fleeting expletives.
But the Supreme Court's 5-4 ruling was focused on the way the FCC enacted its tougher policy and sent the case back to the New York court to decide the broader issue of the constitutionality of the ban on profanity on the broadcast airwaves.
That policy dates to a 1978 Supreme Court decision stemming from the radio broadcast of comedian George Carlin's "seven dirty words" monologue.
In citing the confusion caused by the FCC's current policy, U.S. Circuit Judge Rosemary Pooler wrote that the FCC found some commonly used expressions to be indecent while others were not.
"The English language is rife with creative ways of depicting sexual or excretory organs or activities," she wrote. "Even if the FCC were able to provide a complete list of all such expressions, new offensive and indecent words are invented every day."
Congress voted in 2006 to boost the maximum fine for each violation tenfold, to $325,000, in the aftermath of Janet Jackson's so-called wardrobe malfunction during a Super Bowl halftime performance in 2004 in which one of her breasts was exposed briefly on live TV.
Each station that airs an indecency violation can be hit with the fine, putting networks on the hook for as much as $35 million for each incident.
Fox Broadcasting Co. cheered the ruling. "We have always felt that the government's position on fleeting expletives was unconstitutional," the network said.
Parent Television Council President Tim Winter said the ruling was a slap in the face to parents and families. "Let's be clear about what has happened here today: A three-judge panel in New York once again has authorized the broadcast networks unbridled use of the 'F-word' at any time of the day, even in front of children," he said.
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