Court Says FCC Indecency Rules Are Unconstitutional : The Two-Way A three-judge panel of a federal appeals court said the policy violated the First Amendment. The policy is unconstitutionally vague and creates a chilling effect, the court said.
NPR logo Court: FCC Indecency Rules Unconstitutional

Court: FCC Indecency Rules Unconstitutional

George Carlin, the late comic, whose "seven dirty words" started the whole, decades long, broadcast indecency fight. ROBERT SEBREE/HBO hide caption

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Somewhere, the late comedian George Carlin must be smiling. A federal appeals court on Tuesday struck down the Federal Communications Commission's broadcast indecency policy, saying it violated the U.S. Constitution's First Amendment.

The decision resulted from a lawsuit filed by Fox Television and other broadcasters -- Fox Television vs the FCC.

Broadcasters sued the agency, contending the unconstitutionality of an FCC rule that a fleeting, unscripted utterance of a single expletive during a network show is indecent which make a broadcaster potentially liable for huge monetary fines.

The three-judge panel for the U.S. Court of Appeals for the Second Circuit, wrote:

We now hold that the FCC’s policy violates the First Amendment because it is unconstitutionally vague, creating a chilling effect that goes far beyond the fleeting expletives at issue here.

The appeals court decision hearkens back to the granddaddy of all broadcast indecency cases, Pacifica Foundation vs. FCC. In that case, the appeals court for the District of Columbia circuit struck down a 1975 FCC fine against Pacifica for its station playing a 12-minute recording of Carlin's "Filthy Words" monologue.

The Supreme Court, however, sided with the FCC. It didn't rule on Pacifica's claim that the FCC's rule at the time was too broad and violated the First Amendment.

The high court instead restricted its opinion to whether the FCC had the authority to issue the fine and whether the agency could regulate the broadcast of some language that wasn't considered obscene. The Supreme Court ruled for the agency.

But the Supreme Court emphasized that the FCC's authority was limited.

As the appeals court in Tuesday's case recounts, the FCC responded in the following years by saying it would limit its power to police broadcast indecency to Carlin's "seven dirty words."

The FCC later moved away from a strict focus on those seven words, saying it would consider the context in which the dirty words were used. In the 1980s, "fleeting" uses would largely get a pass. For years, the FCC followed that more lenient approach.

But then the agency shifted again in the last decade. In 2004, after U2 lead singer Bono exclaimed "This is f*#@$^% brilliant" after the group received an award during that year's Golden Globe broadcast, the FCC cracked down.

Like the Lord Joseph in Gilbert and Sullivan's HMS Pinafore who is singularly scandalized by a character's use of a variant of "damn," the FCC said the use of the f-word was so objectionable, that even a fleeting use couldn't be allowed.

The harder line, the fact that the FCC started to treat each broadcast of a show with a particular indecency as a separate instance, and an increase by ten times of the congressionally mandated fines for indecency eventually led broadcasters to say enough was enough. So they sued.

Earlier in the present case, the appeals court struck down the FCC rule on the narrow grounds that it violated the Administrative Procedure Act.

The Supreme Court sided with the FCC on that, however, and sent the case back to the appeals court for a decision on the constitutionality of the law. Tuesday's opinion was the appellate court's answer.