Why the Second Circuit Ruling Against the FCC Is Wrong, Part 1
- Jun 21, 2007 - comment
If the Federal Communications Commission appeals the recent Second Circuit Court of Appeals’ 2-1 ruling that it cannot sanction networks for airing “fleeting expletives,” it will likely point to arguments made by the dissenting judge, Pierre N. Leval.
In the case, Fox Television Stations, et. al, v. FCC, the FCC sanctioned stations that aired the 2002 and 2003 Billboard Music Awards. After receiving complaints from viewers about remarks made by artists Cher and Nicole Richie during the broadcast, the FCC reaffirmed its stance that the F-word is presumptively indecent and profane and added that any use of the S-word is as well1. Title 18 of the United States Code, Section 1464 prohibits the utterance of “any obscene, indecent or profane language by means of radio communication2.”
Click here to read part 2 of the series, entitled Why the Second Circuit Ruling Against the FCC Is Wrong, Part 2.
The FCC changed its treatment of “fleeting,” isolated uses of expletives beginning with its handling of complaints over the live broadcast of the Golden Globe Awards in 2002 when rock-musician Bono used the F-word in describing his delight over receiving an award. Since the 1970s, the FCC had traditionally sanctioned broadcasters only for repeated expletives and had generally not regarded fleeting expletives as indecent. Indecent and profane speech is prohibited on television and radio between the hours of 6 a.m. and 10 p.m., the part of the day when children are likely to be in the viewer audience.
In the Golden Globe decision, the FCC ruled that any use of the F-word or any variant of the word inherently has a sexual connotation and falls within the scope of its indecency definition because it is “patently offensive under contemporary community standards.” The FCC overruled all prior decisions that claimed fleeting uses of the word are not indecent3.
The majority in the Billboard Music Awards case stated that the FCC’s sanctions against the broadcasters were inappropriate because it did not give a “reasoned explanation” for the change it made to its long-standing policy toward fleeting expletives and labeled the change “arbitrary and capricious,” in violation of the Administrative Procedures Act4.
Leval’s dissenting opinion argued that the FCC actually did give a reasonable explanation for its change and that the Court should give it deference in administrative regulation of the networks.
In altering its stance on fleeting expletives, the FCC concluded that the F-word is a word of extreme and graphic vulgarity and inevitably conveys a sexual connotation. Even when those who use the expletive give it no sexual meaning, a significant portion of the population and viewing audience associate it with an offensive sexual connotation5.
The FCC also predicted that if it did not change its policy, a barrage of fleeting expletives would fill the airwaves at all hours of the day, mainly because those words are used more often today than they were when the FCC first started issuing sanctions for indecent speech, and competing cable channels are allowed to use them at any time6. In a 1978 U.S. Supreme Court case that labeled George Carlin’s “Filthy Words” monologue as indecent, the Court placed particular emphasis on protecting children from such language. The Court said broadcasting receives the most limited First Amendment protection of all forms of communications because it is a “uniquely pervasive presence in the lives of all Americans” reaching into the privacy of the home and is “uniquely accessible to children, even those too young to read7.”
Leval also agreed with the FCC that the standards are consistent because the FCC uses context-based distinctions. The FCC maintains that it is observant of the First Amendment’s protections and the prohibitions on censorship and interference with broadcasters’ freedom of speech, denying viewer complaints about indecent speech based on overall context of the programming8. The FCC makes exceptions to its indecency policy in instances such as bona fide news interviews and in broadcasts where the use of the word is an integral part of the work, such as the movie Saving Private Ryan9.
Because the FCC has broad discretionary power to establish rules and standards and the agency gave reasonable explanations for its policy change—in compliance with the Administrative Procedures Act—Leval argued the FCC should be given deference by the courts and should be allowed to sanction and fine networks for broadcasting indecent or profane language10.
The Second Circuit majority, by its ruling, effectively hijacked the FCC’s statutory authority to regulate the networks by substituting its own definition of indecent and profane language in place of the agency’s adopted definition.
Click here to read part 2 of the series, entitled Why the Second Circuit Ruling Against the FCC Is Wrong, Part 2.
1 “Complaints Regarding Various Television Broadcasts Between February 2, 2002 and March 8, 2005,” 21 F.C.C.R. 2664 (2006) (“Omnibus Order”), ¶¶102, 107, 138, 143.
2 18 U.S.C. § 1464. This includes radio and television broadcasts.
3 See “Complaints Against Various Broadcast Licensees Regarding Their Airing of the ‘Golden Globe Awards’ Program,” 19 F.C.C.R. 4975, at ¶¶8-9 (2004).
4 Fox Television Stations Inc. v. Federal Communications Commission, No. 06-1670, 2007 WL 1599032 (2d Cir. June 4, 2007), pp. 18-19.
5 The F-word is one of the “most vulgar, graphic, and explicit descriptions of sexual activity in the English language… Any use of that word has a sexual connotation even if the word is not used literally.” (Golden Globe Awards, at ¶¶8-9; Remand Order, at ¶16).
6 Fox Television, pp. 49-50.
7 Federal Communications Commission v. Pacifica Foundation, 438 U.S. 726 (1978).
9 Fox Television, pp. 47-48.
10 Fox Television, p. 44.
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