FCC hard-line anti-obscenity rebuffed by court.

[SirNitram]

NY Times.

WASHINGTON, June 4 — If President Bush and Vice President Cheney can blurt out vulgar language, then the government cannot punish broadcast television stations for broadcasting the same words in similarly fleeting contexts.

That, in essence, was the decision on Monday, when a federal appeals panel struck down the government policy that allows stations and networks to be fined if they broadcast shows containing obscene language.

Although the case was primarily concerned with what is known as “fleeting expletives,” or blurted obscenities, on television, both network executives and top officials at the Federal Communications Commission said the opinion could gut the ability of the commission to regulate any speech on television or radio.

Kevin J. Martin, the chairman of the F.C.C., said that the agency was now considering whether to seek an appeal before all the judges of the appeals court or to take the matter directly to the Supreme Court.

The decision, by a divided panel of the United States Court of Appeals for the Second Circuit in New York, was a sharp rebuke for the F.C.C. and for the Bush administration. For the four television networks that filed the lawsuit — Fox, CBS, NBC and ABC — it was a major victory in a legal and cultural battle that they are waging with the commission and its supporters.

Under President Bush, the F.C.C. has expanded its indecency rules, taking a much harder line on obscenities uttered on broadcast television and radio. While the judges sent the case back to the commission to rewrite its indecency policy, it said that it was “doubtful” that the agency would be able to “adequately respond to the constitutional and statutory challenges raised by the networks.”

The networks hailed the decision.

“We are very pleased with the court’s decision and continue to believe that the government regulation of content serves no purpose other than to chill artistic expression in violation of the First Amendment,” said Scott Grogin, a senior vice president at Fox. “Viewers should be allowed to determine for themselves and their families, through the many parental control technologies available, what is appropriate viewing for their home.”

Mr. Martin, the chairman of the commission, attacked the panel’s reasoning.

“I completely disagree with the court’s ruling and am disappointed for American families,” he said. “The court says the commission is ‘divorced from reality.’ It is the New York court, not the commission, that is divorced from reality.”

He said that if the agency was unable to prohibit some vulgarities during prime time, “Hollywood will be able to say anything they want, whenever they want.”

Beginning with the F.C.C.’s indecency finding in a case against NBC for a vulgarity uttered by the U2 singer Bono during the Golden Globes awards ceremony in 2003, President Bush’s Republican and Democratic appointees to the commission have imposed a tougher policy by punishing any station that broadcast a fleeting expletive. That includes vulgar language blurted out on live shows like the Golden Globes or scripted shows like “NYPD Blue,” which was cited in the case.

Reversing decades of a more lenient policy, the commission had found that the mere utterance of certain words implied that sexual or excretory acts were carried out and therefore violated the indecency rules.

But the judges said vulgar words are just as often used out of frustration or excitement, and not to convey any broader obscene meaning. “In recent times even the top leaders of our government have used variants of these expletives in a manner that no reasonable person would believe referenced sexual or excretory organs or activities.”

Adopting an argument made by lawyers for NBC, the judges then cited examples in which Mr. Bush and Mr. Cheney had used the same language that would be penalized under the policy. Mr. Bush was caught on videotape last July using a common vulgarity that the commission finds objectionable in a conversation with Prime Minister Tony Blair of Britain. Three years ago, Mr. Cheney was widely reported to have muttered an angry obscene version of “get lost” to Senator Patrick Leahy on the floor of the United States Senate.

“We find that the F.C.C.’s new policy regarding ‘fleeting expletives’ fails to provide a reasoned analysis justifying its departure from the agency’s established practice,” said the panel.

Emily A. Lawrimore, a White House spokeswoman, said Mr. Bush and Mr. Cheney had no comment about the ruling.

Although the judges struck down the policy on statutory grounds, they also said there were serious constitutional problems with the commission’s attempt to regulate the language of television shows.

“We are skeptical that the commission can provide a reasoned explanation for its ‘fleeting expletive’ regime that would pass constitutional muster,” said the panel in an opinion written by Judge Rosemary S. Pooler and joined by Judge Peter W. Hall. “We question whether the F.C.C.’s indecency test can survive First Amendment scrutiny.”

In his dissent, Judge Pierre N. Leval defended the commission’s decision to toughen its indecency policy.

“In explanation of this relatively modest change of standard, the commission gave a sensible, although not necessarily compelling, reason,” he said.

“What we have is at most a difference of opinion between a court and an agency,” Judge Leval said. “Because of the deference courts must give to the reasoning of a duly authorized administrative agency in matters within the agency’s competence, a court’s disagreement with the commission on this question is of no consequence. The commission’s position is not irrational; it is not arbitrary and capricious.”

The case involved findings that the networks had violated the indecency rules for comments by Cher and Nicole Richie on the Billboard Music Awards, the use of expletives by the character Andy Sipowicz on “NYPD Blue” and a comment on “The Early Show” by a contestant from CBS’s reality show “Survivor.”

The commission did not issue fines in any of the cases because the programs were broadcast before the agency changed its policy. But the networks were concerned about the new interpretation of the rules, particularly since the agency has been issuing a record number of fines.

Two years ago, Congress increased the potential maximum penalty for each indecency infraction to $325,000, from $32,500. Producers and writers have complained that the prospect of stiff fines had begun to chill their creative efforts.

The case, Fox et al. v. Federal Communications Commission, along with a second case now before a federal appeals court in Philadelphia involving the malfunctioning wardrobe that exposed one of the pop singer Janet Jackson’s breasts during the halftime show of the 2004 Super Bowl, have been closely watched by the television industry and its critics for their broad implications for television programming.

Neither cable TV nor satellite programming faces the same indecency rules even though they cover about 85 percent of homes. And as the Bush administration’s appointees have taken a tougher view on indecency, the industry has waged a countercampaign in the courts.

The commission has struggled to consistently explain how it applies the rules. In the Bono case involving the Golden Globe awards, the staff initially ruled in favor of the network. After lawmakers began to complain about that decision, the commission, then led by Michael K. Powell, reversed the staff decision.

But the commission declined to impose a fine because, it noted, “existing precedent would have permitted this broadcast” and therefore NBC and its affiliates “necessarily did not have the requisite notice to justify a penalty.”

Broadcast television executives have complained about what they say has been the arbitrary application of the rules. They expressed concern, for instance, that they might be penalized for broadcasting “Saving Private Ryan,” a Steven Spielberg movie about the invasion of Normandy during World War II, because of the repeated use of vulgarities.

But the F.C.C. in that case ruled in favor of the networks, finding that deleting the expletives “would have altered the nature of the artistic work and diminished the power, realism and immediacy of the film experience for viewers.”

[Darth Wong]

Mr. Martin, the chairman of the commission, attacked the panel’s reasoning.
...
He said that if the agency was unable to prohibit some vulgarities during prime time, “Hollywood will be able to say anything they want, whenever they want.”

What happened to the Bush Administration's "freedom agenda?"

[Tribun]

Mr. Martin, the chairman of the commission, attacked the panel’s reasoning.
...
He said that if the agency was unable to prohibit some vulgarities during prime time, “Hollywood will be able to say anything they want, whenever they want.”

What happened to the Bush Administration's "freedom agenda?"

Remember that there is a difference between "Freedom" and "Freedom".

[Alferd Packer]

All this FCC bullshit is why I support satellite radio; not only do I hear uncensored, commercial-free music, but I hear completely uncensored talk. There's something liberating about listening who a radio show which proclaims, "Fuck the FCC. Fuck the Religious Right. No more bullshit!" so often it's become the de-facto motto. That it's entertaining at the same time is is major plus, too.

[Molyneux]

Well done!
I never thought I'd be rooting for Fox in anything...

Incidentally - did the FCC always have the authority to define obscenity, or did they get that ability later?

[D.Turtle]

“The court says the commission is ‘divorced from reality.’ It is the New York court, not the commission, that is divorced from reality.”

What a BRILLIANT rebuttal, I mean, its nice to know such brilliant people are deciding what is decent or not...

By the way, does anyone else have the feeling that is extreme animosity accorded to "vulgar language" in the media is just a tiny little bit like trying to stop a tidal wave by standing up to it and saying "Stop"?

[Einhander Sn0m4n]

...a radio show which proclaims, "Fuck the FCC. Fuck the Religious Right. No more bullshit!" so often it's become the de-facto motto.

What radio show is this!? I gotta hear this shit even as podcast!

[wolveraptor]

Dear Lord God, please don't let them take it to the Supreme Court. Not to this one. Have mercy.

[Tanasinn]

“Hollywood will be able to say anything they want, whenever they want.”

Yeah, that's what we call the "First Amendment," guys. Personally, I think we could use a bit more of it.

[DPDarkPrimus]

B-b-b-but the children!

[The Yosemite Bear]

"The children are light years ahead of the FCC in terms of use of english, and that's just from what they get in the school yard."

[Stravo]

All this FCC bullshit is why I support satellite radio; not only do I hear uncensored, commercial-free music, but I hear completely uncensored talk. There's something liberating about listening who a radio show which proclaims, "Fuck the FCC. Fuck the Religious Right. No more bullshit!" so often it's become the de-facto motto. That it's entertaining at the same time is is major plus, too.

Unfortunately I cannot agree with this sentiment anymore. Opie and Anthony got a 30 day suspension from their satellite radio show because a guest - not them - talked about wanting to sexually molest Condaleeza Rice. This crap extends even into satellite radio.

[Molyneux]

All this FCC bullshit is why I support satellite radio; not only do I hear uncensored, commercial-free music, but I hear completely uncensored talk. There's something liberating about listening who a radio show which proclaims, "Fuck the FCC. Fuck the Religious Right. No more bullshit!" so often it's become the de-facto motto. That it's entertaining at the same time is is major plus, too.

Unfortunately I cannot agree with this sentiment anymore. Opie and Anthony got a 30 day suspension from their satellite radio show because a guest - not them - talked about wanting to sexually molest Condaleeza Rice. This crap extends even into satellite radio.

Eh...self-censorship is a lot less worrying than governmental censorship. For one thing, it doesn't have the force of law.

[Lonestar]

Well done!
I never thought I'd be rooting for Fox in anything...

Incidentally - did the FCC always have the authority to define obscenity, or did they get that ability later?

IIRC, an episode of Bullshit explained that the FCC started regulating Radio/Broadcast media Bac In The Day because the reasoning was that most cities had several newspapers...and you could always just switch papers if you didn't like the content. Whereas most cities only had one or two radio/TV stations, so the options for the consumer were limited.

Of course, the situation is slightly reversed today. Even if you were to agree with the original logic.

[Alferd Packer]

What radio show is this!? I gotta hear this shit even as podcast!

The Howard Stern show. IIRC, George Takei did the announcing for that particular clip, as he sits in on the show from time to time as their official announcer.

[Molyneux]

Well done!
I never thought I'd be rooting for Fox in anything...

Incidentally - did the FCC always have the authority to define obscenity, or did they get that ability later?

IIRC, an episode of Bullshit explained that the FCC started regulating Radio/Broadcast media Bac In The Day because the reasoning was that most cities had several newspapers...and you could always just switch papers if you didn't like the content. Whereas most cities only had one or two radio/TV stations, so the options for the consumer were limited.

Of course, the situation is slightly reversed today. Even if you were to agree with the original logic.

If that is true, it's seriously fucked-up and needs to be changed.

[Flagg]

Not only that, but it was regulation based on something that wasn't even a problem at the time.

[CmdrWilkens]

Not only that, but it was regulation based on something that wasn't even a problem at the time.

The idea behind the FCC actually has more to do with the idea that the government OWNS the radio/tv broadcast spectrum and thus as the owner has the right to regulate how it is utilized. its the logic behind the ability of the government to require all the broadcast channels to air major Presidential speeches or congressional events. At the same time since cable and satellitte are invariably property owned by individual companies (either the cables or the satellite's themselves if not neccessarrily the signal which the later transmits) the FCC and the government have significantly less power to regulate them and in fact they have not attempted to except through the FTC and the interstate commerce clause.

[Flagg]

Not only that, but it was regulation based on something that wasn't even a problem at the time.

The idea behind the FCC actually has more to do with the idea that the government OWNS the radio/tv broadcast spectrum and thus as the owner has the right to regulate how it is utilized. its the logic behind the ability of the government to require all the broadcast channels to air major Presidential speeches or congressional events. At the same time since cable and satellitte are invariably property owned by individual companies (either the cables or the satellite's themselves if not neccessarrily the signal which the later transmits) the FCC and the government have significantly less power to regulate them and in fact they have not attempted to except through the FTC and the interstate commerce clause.

I have no issue with the existance of the FCC, since someone has to regulate frequencies and broadcast range. I take issue with them imposing fines on content they disapprove of.