The 'Fleeting Expletive' Opinion: Surprisingly Readable, Slightly Off-Color A federal appeals court throws out the FCC's current indecency policy, but what did the court actually say?

The 'Fleeting Expletive' Opinion: Surprisingly Readable, Slightly Off-Color

Cher at the 2002 FOX Billboard Music Awards, where she got herself into the FCC's crosshairs. Kevin Winter/Getty Images North America hide caption

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Kevin Winter/Getty Images North America

Cher at the 2002 FOX Billboard Music Awards, where she got herself into the FCC's crosshairs.

Kevin Winter/Getty Images North America

Neda Ulaby had the story yesterday on Tuesday's court decision striking down the FCC's current approach to indecency. Keep in mind: this is a mid-level decision. The Supreme Court could wind up going the other way.

If it stands, though, the decision has the potential to change what's recently been stricter FCC enforcement of indecency standards overall -- and particularly the FCC's stance on the use of profanity. It's definitely worth checking out if you've been following the progression from Janet Jackson at the Super Bowl to Nicole Richie (and Bono and Cher) swearing on various awards shows. And for a court opinion, it's not a terrible reading experience.

The basic ruling is that the FCC's policy of punishing even "fleeting expletives" (a change from the way they did things for many years, by the way) is unconstitutionally vague. In other words, it's too hard to tell from the policy and the guidance given by the agency what they're going to punish and what they're not. Courts tend to think you can't expect people to follow rules (or regulations issued by federal agencies) if they can't figure out what's out of bounds.

Historically speaking, courts are particularly uneasy about vagueness with content restrictions, on the understanding that if you have a team of lawyers whose job it is to make sure you don't get fined -- more important now that FCC fines are massively larger than they used to be -- and whose job it isn't to look after the quality of your content, they're going to tell you, basically, "When in doubt, don't show it/air it/say it."

In talking about vagueness, the court described various decisions the agency had made, and summed them up like this:

Thus, the word "bull----" is indecent because it is "vulgar, graphic and explicit" while the words "d---head" was not indecent because it was "not sufficiently vulgar, explicit, or graphic." This hardly gives broadcasters notice of how the Commission will apply the factors in the future.

(The court does not use dashes.)

But to me, the heart of the decision is in another paragraph.

The court talks about the FCC's policy shift, from a strict list of bad words to a less specific description of the standards it would apply to decide which words are bad, and it says:

The FCC argues that a flexible standard is necessary precisely because the list was not effective -- broadcasters simply found offensive ways of depicting sexual or excretory organs or activities without using any of the seven words. In other words, because the FCC cannot anticipate how broadcasters will attempt to circumvent the prohibition on indecent speech, the FCC needs the maximum amount of flexibility to be able to decide what is indecent. The
observation that people will always find a way to subvert censorship laws may expose a certain futility in the FCC’s crusade against indecent speech, but it does not provide a justification for
implementing a vague, indiscernible standard. If the FCC cannot anticipate what will be considered indecent under its policy, then it can hardly expect broadcasters to do so.

So this is the flaw that the court believes exists in the FCC's reasoning. Suppose, as the FCC clearly argues, that some words earn fines and some words don't, even though they refer to the same concept. (There are non-prohibited words that mean the same thing as the vaunted f- and s-words, for instance.)

If broadcasters come up with other ways to say the same thing, then how are they to know whether they're using one of the permitted non-dirty alternatives or one of the "you're just trying to get around the list" alternatives this "flexibility" is designed to allow the FCC to target?

An example: There was a radio station in Minneapolis when I lived there that tried pretty hard to be family-friendly (it was sort of "Hits Of The '80s, '90s, And Today" rather than anything shock-jocky), but it still sometimes felt the need to reference sex on its morning drive-time show. The hosts decided that instead of using any sort of explicit or vulgar language, they would use the expression "shaking hands with Don Shelby." (Don Shelby was a local TV newsman.)

As I read the court's reasoning, the reason they find the FCC's rules vague is that it's not clear whether "shaking hands with Don Shelby" is a valid "make the same point using non-offensive language" euphemism -- or a fine-worthy "Hey, that's still offensive language even if you didn't use any dirty words, and we know what you're up to" alternative.

But note also that the court goes on to say that the FCC's total ban on the two most uniformly agreed-upon dirty words is vague too, since the agency leaves itself opportunities to allow even those words if they happen to be used in an adequately artsy manner.

Along those lines, the court looked unkindly on the possibility that vagueness leads to what it called "discriminatory" outcomes. While not accusing the FCC outright of discrimination, it made this point regarding a discrepancy Neda mentioned in her piece:

We have no reason to suspect that the FCC is using its indecency policy as a means of suppressing particular points of view. But even the risk of such subjective, content-based decision-making raises grave concerns under the First Amendment.

Take, for example, the disparate treatment of "Saving Private Ryan" and the documentary, "The Blues." The FCC decided that the words [f-word] and [s-word] were integral to the "realism and immediacy of the film experience for viewers" in "Saving Private Ryan," but not in "The Blues." ... We query 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, and it is hard not to speculate that the FCC was simply more comfortable with the themes in "Saving Private Ryan," a mainstream movie with a familiar cultural milieu, than it was with "The Blues," which largely profiled an outsider genre of musical experience.

So what does all this mean? Well, until the case gets to the Supreme Court (or the FCC decides not to appeal it there, which seems unlikely), it doesn't necessarily mean anything permanently. But it's an interesting wrap-up of a bunch of issues in one case: the possibility that nobody exactly knows which words are dirty anymore, the growth of cable (which the court discusses), the way that flexible standards can turn into very uncomfortable decisions about what's respectable and what isn't, and lots more.

The last part of the decision is perhaps the most interesting: It talks about what broadcasters have already given up to try to avoid trouble with this policy, from refusing to air acclaimed programming to backing away from covering live news events (including Pat Tillman's memorial service) for fear that unexpected language could result in large fines.

For a 32-page court opinion, it's a pretty interesting read.