Court strikes down FCC indecency rule

July 14, 2010 at 12:00a.m.

Los Angeles Times

WASHINGTON

A federal appeals court on Tuesday struck down the government’s longstanding prohibition against indecency on broadcast television and radio, ruling 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 that began in 2004.

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 back to a 1978 Supreme Court decision stemming from the radio broadcast of comedian George Carlin’s “seven dirty words” monologue. The FCC began a tougher crackdown on indecency in 2004 under the Bush administration.

Congress voted in 2006 to boost the maximum fine for each violation tenfold, to $325,000, in the aftermath of singer Janet Jackson’s so-called wardrobe malfunction during the Super Bowl halftime show in which one of her breasts was briefly exposed 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.

“Under the current policy, broadcasters must choose between not airing or censoring controversial programs and risking massive fines or possibly even loss of their licenses, and it is not surprising which option they choose,” U.S. Circuit Judge Rosemary S. Pooler wrote in Tuesday’s decision.

The court cited the failure of several CBS affiliates not to air the Peabody Award-winning “9/11” documentary, which contained some expletives in audio footage from firefighters responding to the Sept. 11, 2001, terrorist attacks.

Fox Broadcasting Co. cheered the ruling.

“We have always felt that the government’s position on fleeting expletives was unconstitutional,” the network said. “While we will continue to strive to eliminate expletives from live broadcasts, the inherent challenges broadcasters face with live television, coupled with the human element required for monitoring, must allow for the unfortunate isolated instances where inappropriate language slips through.”