In a major victory for television networks, a federal appeals court struck down the Federal Communications Commission's indecency policy on Tuesday, calling it "unconstitutionally vague."
The case arose after the FCC implemented indecency guidelines in 2004 regarding so-called "fleeting expletives," after U2 singer Bono won a Golden Globe award in 2003 and said on live TV, "This is really, really [expletive] brilliant." After that incident, the FCC declared that "a single, nonliteral use" of an expletive could be "actionably indecent."
The FCC also said that each affiliate broadcast of "indecent" language constituted a violation that was subject to a fine. And after Congress hiked the penalty tenfold -- from $32,500 to $325,000 -- "the fine for a single expletive uttered during a broadcast could easily run into the tens of millions of dollars," the appeals court said.
Networks Argued Rules Were "Arbitrary and Capricious"
NBC, Fox, CBS and ABC had sued the FCC in 2006, saying the agency's rules violated the First Amendment and were "arbitrary and capricious." In 2007, the U.S. Second Circuit Court of Appeals agreed, but last year the Supreme Court ruled in favor of the the FCC, saying the rules were needed due to the "pervasiveness of foul language" and the "coarsening of public entertainment."
The high court sent the case back to the Second Circuit. On Tuesday, the three-judge panel said the FCC indecency rules were "unconstitutionally vague, creating a chilling effect that goes far beyond the fleeting expletives at issue here."
"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," the court said. "Indeed, there is ample evidence in the record that the FCC's indecency policy has chilled protected speech."
For example, the court pointed to the decision by several CBS affiliates not to broadcast an award-winning documentary about 9/11 that contained profanity out of fear that they could be fined by the FCC.
Risks to Free Speech
The court also found the that the FCC rules raised the risk that indecency guidelines could be used to suppress free speech.
"We have no reason to suspect that the FCC is using its indecency policy as a means of suppressing particular points of view," the court said. "But even the risk of such subjective, content-based decision-making raises grave concerns under the First Amendment."
In a statement, Fox welcomed the decision saying, "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."
The FCC's rules can be traced back to comedian George Carlin's "Seven Dirty Words" routine, which prompted the agency to craft its indecency policy in the mid-1970's.
The FCC can ask the full Second Circuit to review the decision or appeal it directly to the Supreme Court. Another noted indecency case -- Janet Jackson's infamous wardrobe malfunction at the 2004 Super Bowl -- is still being considered by the Third Circuit Court.