Federal Court Strikes Down FCC Indecency Policy

A federal appeals court on Tuesday overturned the Federal Communications Commission's "fleeting expletives" policy, calling it unconstitutionally vague. The policy was put in place in 2004, in the wake of expletives on live awards shows. Michele Norris talks to NPR's Nina Totenberg.

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ROBERT SIEGEL, host:

From NPR News, this is ALL THINGS CONSIDERED. I'm Robert Siegel.

MICHELE NORRIS, host:

And I'm Michele Norris.

A federal appeals court in New York has struck down the federal policy that levied large fines against broadcasters for allowing even a single use of a curse word. The court declared unanimously that the ban on fleeting expletives is so vague that it can easily lead to inhibiting speech in violation of the First Amendment.

NPR legal affairs correspondent Nina Totenberg joins us now to talk about this. And first, Nina, the basics of the case itself.

NINA TOTENBERG: Well, for decades, the Federal Communications Commission had a lenient enforcement policy in regards to what are called fleeting expletives - that is one-time, isolated use on the air of words that you would tell your child are bad words we don't use in polite company.

That policy changed during the Bush administration and was changed by the Federal Communications Commission. And the enforcement saga began when Bono, the singer, at the Golden Globe Awards accepted his prize this way.

(Soundbite of TV program, "60th Annual Golden Globe Awards")

BONO (Lead Singer, U2): This is really, really (beep) brilliant and...

(Soundbite of laughter)

BONO: ...really, really great.

TOTENBERG: Now, I don't want you to think this was the only occurrence like this. There were others. And the FCC said it would levy big fines for these occurrences because the words used were explicit descriptions of sexual acts or excretory functions.

The case went to the Supreme Court, which last year ruled that the FCC was free to reverse decades of previous policy, but the court explicitly declined to say whether the new enforcement rules actually violated the Constitution. And the justices sent the case back to the lower courts to examine that question.

Well, today, the Federal Appeals Court in New York said the fleeting expletive enforcement rule is so vague, so unclear, so self-contradictory, that it's a violation of the First Amendment guarantee of free speech.

NORRIS: That's one thing in particular that I want you to clarify. What does the court mean by vague?

TOTENBERG: Well, for example, the FCC allows the use of the F-word and the S-word, as Justice Scalia put it in his announcement of this opinion last year.

NORRIS: It was very careful language.

TOTENBERG: It was very careful language. The FCC allowed the use of those words in the movie "Saving Private Ryan" because it deemed that an expressive work of art, but it wanted to levy stiff fines for the same words used in a documentary about the blues. And indeed, the agency changed its own position about the use of the S-word in a news interview initially seeking to levy a fine for a news interview on the CBS "Early Show" and then changing its mind later.

And the court of appeals said that since the FCC itself couldn't seem to have a consistent view, broadcasters were censoring themselves to prevent both the fines and the litigation that would ensue from challenging a fine, thus, for example, a Vermont station refused to air a political debate because one of the local politicians involved had previously used an expletive on the air. And a Phoenix station dropped plans to cover a memorial service for Pat Tillman, the former football star killed in Afghanistan, because of language used by Tillman's family to express their grief.

NORRIS: Nina, what happens now?

TOTENBERG: Well, there are two things that can happen. The government can appeal to the Supreme Court. And I've talked to a bunch of lawyers today who think that that's only a 50 percent likelihood, if that, or the FCC can revisit the policy and go back to a more lenient enforcement policy without stiff fines and with isolated language without intent to shock, you know, not the sort of Howard Stern kind of use of - or the seven dirty words, the George Carlin seven dirty words - that it wouldn't punish those kind - that's what it used to do. It didn't punish those kinds of fleeting expletives. It could go back to that, or we can go to the Supreme Court and we'll have a big fight in the Supreme Court again.

NORRIS: Thank you, Nina.

TOTENBERG: Thank you.

NORRIS: That's NPR Nina Totenberg.

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