(CN) – The 2nd Circuit on Tuesday once again struck down the Federal Communication Commission’s indecency policy, calling it “unconstitutionally vague” because it creates “a chilling effect that goes far beyond … fleeting expletives.”
The dispute between the FCC and several major TV networks appeared before the Manhattan-based federal appeals court for a second time after it was sent back by the Supreme Court. In April 2009, the justices voted 5-4 that the FCC’s ban on brief, one-time utterances of profanities — or so-called “fleeting expletives” — was not “arbitrary and capricious,” as the 2nd Circuit had ruled in a 2-1 decision.
Justice Antonin Scalia backed the FCC’s discretion to regulate “the deliberate and shocking uses of offensive language” at televised award shows, which had triggered the original complaint.
The FCC chose to ban fleeting expletives in 2004, after U2 rocker Bono said “this is really, really fucking brilliant” while accepting a Golden Globe Award in 2003. The profanity led to a slew of complaints.
The agency also prohibits all “patently offensive” references to sex, sexual organs and excretion.
Singer Cher and reality TV star Nicole Ritchie put the indecency policy to the test during Fox Television’s broadcasts of the 2002 and 2003 Billboard Music Awards.
Cher said, “People have been telling me I’m on my way out every year, right? So fuck ’em.” Richie, while bantering on stage with Paris Hilton, asked, “Have you ever tried to get cow shit out of a Prada purse? It’s not so fucking simple.”
The Supreme Court had reversed the 2nd Circuit on narrow grounds, without addressing the larger question of whether the policy is constitutional. On remand, a unanimous three-judge panel again axed the FCC’s policy, this time tackling the constitutionality issue head-on.
“The policy may maximize the amount of speech that the FCC can prohibit,” Judge Rosemary Pooler wrote, “but it results in a standard that even the FCC cannot articulate or apply consistently.”
She cited the example of CBS’s “The Early Show,” which was fined after a guest called a fellow “Survivor” contestant a “bullshitter.” The agency later reversed the fine, deciding that the broadcast qualified as a “bona fide news interview.”
“In other words, 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,” Pooler wrote.
“With the FCC’s indiscernible standards come the risk that such standards will be enforced in a discriminatory manner.”
The panel said the policy forces broadcasters to shy away from live shows and controversial topics or guests for fear of being fined if the FCC deems them “indecent.”
“[T]he absence of reliable guidance in the FCC’s standards chills a vast amount of protected speech dealing with some of the most important and universal themes in art and literature,” Pooler wrote. She said this “has the effect of promoting wide self-censorship of valuable material which should be completely protected under the First Amendment.”
Though the court rejected the current policy, it left the door open for the FCC to come up with a constitutional one.