Federal Court Strikes Down FCC Indecency Policy on First Amendment Grounds

As has been widely reported, the U.S. Court of Appeals for the Second Circuit has struck down the FCC’s broadcast indecency standard. In a decision released July 13^th, the Court found that the existing policy was too vague for broadcasters to interpret, and was therefore inconsistent with the First Amendment. Although the case was precipitated by broadcasts in which variants of the “F-Word” and the “S-Word” were briefly uttered, the impact of the decision extends beyond use of so-called “fleeting expletives.” The Court found more generally that the FCC’s approach to evaluating whether broadcast material is indecent fails to provide “a discernible standard by which broadcasters can accurately predict what speech is prohibited,” an argument that this firm has made for many years on behalf of broadcasters subjected to FCC indecency proceedings.

In invalidating the current indecency regime, the Court noted multiple instances where it could not discern why the FCC had found certain content “patently offensive” while finding similar content not subject to sanction. For example, the FCC determined that use of the word “bullshit” on an episode of NYPD Blue was actionably indecent, while use of the word “dickhead” in the same program was not, basing its conclusions solely on the unelaborated statements that the former was “vulgar, graphic and explicit,” while the latter was “not.” The Court stated that these explanations “hardly give[] broadcasters notice of how the Commission will apply the factors in the future” to other language that some listeners or viewers might consider offensive.

The Court also criticized the FCC’s inconsistent application of two exceptions to its indecency policy, applicable to “bona fide news” and programming of “artistic” merit. The Court noted that the FCC has taken contradictory positions in the same proceeding on the significance of the “news” designation, finding in the first instance that use of the word “bullshitter” on CBS’s The Early Show was “‘shocking and gratuitous’ because it occurred ‘during a morning television interview’” only to later reverse itself specifically “because the broadcast was a ‘bona fide news interview.’” As the Court put it, “the FCC reached diametrically opposite conclusions at different stages of the proceedings for precisely the same reason – that the word ‘bullshitter’ was uttered during a news program.”

With respect to programming’s “artistic merit,” the Court noted the risk that reliance on such individualized considerations about program subject matter could lead to “subjective, content-based decision-making.” It cited the disparate treatment afforded the inclusion of the same expletives in the film Saving Private Ryan, a work of fiction, and in a documentary film called The Blues: Godfathers and Sons, which aired on PBS stations. In these two cases, the “F-word” and the “S-word” were found “integral to the ‘realism and immediacy of the film experience for viewers’ in Saving Private Ryan, but not in The Blues.” The Court questioned “how fleeting expletives could be more essential to the ‘realism’ of a fictional movie than to the ‘realism’ of interviews with real people about real life events.”

The Court went on to identify a number of instances in the record in which broadcasters had censored programming, or declined to air it altogether, because of fears that potentially controversial content might lead to very substantial indecency forfeitures. The Court stated: “By prohibiting all ‘patently offensive’ references to sex, sexual organs, and excretion without giving adequate guidance as to what ‘patently offensive means,’ the FCC effectively chills speech, because broadcasters have no way of knowing what the FCC will find offensive.”

The immediate impact of the Court’s ruling is uncertain, as the FCC can be expected to continue to seek ways to regulate indecent programming, and broadcasters can be expected to continue to apply standards that avoid language that might offend listeners or viewers. In addition, although it invalidated the current indecency enforcement regime, the Court also made clear that the FCC could conceivably fashion a revised indecency enforcement scheme that is consistent with First Amendment standards. For this reason, the ball is now in the FCC’s court to determine whether it should attempt to make changes in its enforcement approach, as suggested by the Court, or if it should ask the Supreme Court to review the Second Circuit’s opinion in the hope of getting it overturned. The legal terrain is complicated by the pendency of other federal Court appeals, including the CBS Super Bowl Halftime Show case in the Third Circuit. Any appeal of the Second Circuit ruling to the Supreme Court would likely not be resolved for at least another year.

If you have any questions regarding this decision or broadcast indecency issues generally, please contact your primary attorney in our office.

July 15, 2010

This memorandum is intended only as a general discussion of these issues and should not be regarded as legal advice.

We would be pleased to provide additional details or advice about specific situations if desired.

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