Court Strikes Down FCC Indecency Policy

The 2nd U.S. Circuit Court of Appeals in Manhattan has overturned the Federal Communications Commission's indecency policy as unconstitutionally vague. This was the 2004 policy the FCC approached following "fleeting expletives" on live awards shows.

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RENEE MONTAGNE, Host:

When the language on TV and radio gets a little salty, you may be hearing fewer of these...

(SOUNDBITE OF BLEEP)

MONTAGNE: Yesterday, a federal appeals court in Manhattan struck down the Federal Communications Commission's indecency policy, saying it was unconstitutional. NPR's Neda Ulaby tells us how this case began and what may come next.

NEDA ULABY: The ruling in question arose from a moment a few years ago when Bono expressed his joy upon winning a Golden Globe.

(SOUNDBITE OF TV BROADCAST)

BONO: That is really, really (bleep) brilliant. And...

ULABY: Award shows earlier this decade seemed to unleash the inner sailor in stars like Cher.

(SOUNDBITE OF TV BROADCAST)

CHER: I've also had critics for the last 40 years saying I was on my way out every year. So (bleep).

(SOUNDBITE OF LAUGHTER)

ULABY: And Paris Hilton and Nicole Richie.

(SOUNDBITE OF TV BROADCAST)

Unidentified Woman: Have you ever tried to get cash (bleep) out of a Prada purse? It's not so (bleep) simple.

ULABY: Such fleeting expletives were a bane to broadcasters. In 2004, the FCC made a change and ruled those outbursts enforceable obscenities. Wardrobe malfunctions, F-bombs - over and over broadcasters were caught off guard about what would get them fined.

ANDREW J: Originally the FCC confined its enforcements to the seven dirty words.

ULABY: Andrew J. Schwartzman runs the Media Access Project. It filed a brief on behalf of artists and musicians, arguing the FCC's policy interfered with their creative process.

Comedian George Carlin, who made the dirty word list infamous, acknowledged one depended on context.

GEORGE CARLIN: It's one of those words that's only partly filthy. Cock, if you're talking about the animal, it's perfectly all right. They used to read that to us from the Bible in third grade. And we would laugh...

(SOUNDBITE OF LAUGHTER)

CARTER PHILLIPS: The problem is, is that the commission allows some words to be used in certain contexts and not used in other contexts.

ULABY: Carter Phillips served as lead lawyer for Fox television stations in the suit. He argued the FCC was inconsistent and unpredictable about what got leeway. The movie "Saving Private Ryan" aired across the country a few years ago without its expletives deleted. But those same words were deemed indecent in a PBS documentary about the blues.

Phillips says as a result, stations often decided not to air any risky material, meaning their viewers missed some worthy programming, like an acclaimed documentary about 9/11.

(SOUNDBITE OF SCREAMING)

PHILLIPS: Initially there are people cursing all over the place, and a lot of networks refused to broadcast that. And why? It's because they were chilled. They were not going to take a chance of exposing the network to ruinous fines.

ULABY: Fines that mounted to hundreds of thousands of dollars for scores of stations across the country. A chilling effect does not begin to bother Patrick Truman, who disagrees with the court of appeals ruling.

PATRICK TRUMAN: It seems foolish to me. There's nothing vague at all about the F-word.

ULABY: Truman is a lawyer whose brief on behalf of the Family Research Council supported the FCC's policy.

TRUMAN: Now, people know what profanity is. People really don't have a difficult time understanding that the F-word, for example, is profane.

ULABY: Despite yesterday's ruling, not much will change, says Andrew J. Schwartzman, especially in the current climate. Networks still face lawsuits over nudity in a live broadcast involving Janet Jackson and in the scripted series "NYPD Blue."

SCHWARTZMAN: I think that the broadcasters will continue to exercise a lot of restraint.

ULABY: Schwartzman says now the FCC has two options: it can change its current policy or appeal to a higher court. He predicts the latter.

SCHWARTZMAN: They have Congress looking down their necks, and the FCC tends to take a very strong line on indecency.

ULABY: The FCC chairman released a statement that said only, quote, "We're reviewing the court's decision in light of our commitment to protect children, empower parents, and uphold the First Amendment.

Neda Ulaby, NPR News.

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