Communications Advisory Bulletin
Second Circuit Rejects FCC’s “Fleeting
Expletives” Policy; Questions Indecency Regime
By Robert
Corn-Revere, Ronald
G. London and Amber
Husbands
[June 2007]
On June 4, 2007, the United States Court of Appeals for the Second
Circuit vacated and remanded the FCC’s decision to apply its
broadcast indecency rules to penalize “isolated” and
“fleeting” expletives as arbitrary and capricious under
the Administrative Procedure Act, and called into serious question
the ongoing constitutionality of the FCC’s enforcement regime
as presently formulated. The decision was issued in response to
an appeal by Fox, CBS, and NBC of an FCC-issued Omnibus Order that,
among other things, had found indecency violations arising from
two different episodes of the Billboard Music Awards on Fox after
presenters Cher and Nichole Richie had used unscripted expletives
on the air.
The Second Circuit decision did not limit its holding to the two
programs on Fox, but invalidated the Commission’s current
attempt to create a new “fleeting expletives” policy,
as first announced in 2004 in a decision involving the Golden Globe
Awards. The court held that the policy is arbitrary and capricious
because it represents a significant departure from positions previously
taken by the FCC and because the FCC has failed to articulate a
reasoned basis for the change in policy. Accordingly, the court
remanded the Omnibus Order to the FCC for further proceedings consistent
with its opinion.
In the 2-1 majority opinion, authored by Judge Pooler and joined
by Judge Hall, the court concluded that the FCC failed to adequately
explain the radical departure from its previously restrained interpretation
of its indecency policy in (and after) its 2004 Golden Globes
order, which first held that any variant of “the F-Word”—even
a fleeting and isolated instance—falls within the scope of
the indecency definition. The court recognized that “[f]or
decades broadcasters relied on the FCC’s restrained approach
to indecency regulation and its consistent rejection of arguments
that isolated expletives were indecent,” and that the FCC
must provide a reasoned basis for any change in its policy. The
court suggested that the FCC needs to show that indecent speech
is harmful in some way, noting that the FCC’s order was “devoid
of any evidence that suggests a fleeting expletive is harmful, let
alone establishes that this harm is serious enough to warrant government
regulation. Such evidence would seem to be particularly relevant
today when children likely hear this language far more often from
other sources than they did in the 1970s when the Commission first
began sanctioning indecent speech.”
Because the majority decided that the FCC's decision was arbitrary
and capricious, it concluded it was unnecessary to reach the other
constitutional issues raised by the networks. However, the court
issued nearly nine pages of “dicta” that expressed “skepticism”
that “the Commission can provide a reasoned explanation for
its ‘fleeting expletive’ regime that would pass constitutional
muster.” (“Dicta” are observations that, while
not necessary to the decision rendered, are used, as the Second
Circuit indicated here, to clarify a complicated subject and/or
to “assist future courts, … lawyers and society to predict
the future course of the court’s ruling.”) In fact,
the court wrote—quite broadly—that as an overarching
matter it “question[ed] whether the FCC’s indecency
test can survive First Amendment scrutiny.” The court stated
that it was “sympathetic to the Networks’ contention
that the FCC’s indecency test is undefined, indiscernible,
inconsistent, and consequently, unconstitutionally vague,”
and added: “We can understand why the Networks argue that
FCC’s ‘patently offensive as measured by contemporary
community standards’ indecency test coupled with its ‘artistic
necessity’ exception fails to provide the clarity required
by the Constitution [and] creates an undue chilling effect on free
speech.”
Citing the Supreme Court’s decision in Reno v. ACLU
that invalidated as unconstitutionally vague a legal standard nearly
identical to the FCC’s formulation of its indecency rule,
the court said: “we are hard pressed to imagine a regime that
is more vague than one that relies entirely on consideration of
the otherwise unspecified 'context' of a broadcast indecency.”
The court also stated that “the FCC’s indecency test”
also raises “the separate constitutional question of whether
it permits the FCC to sanction speech based on [the agency’s]
subjective view of the merit of that speech.” It added, “the
FCC’s current indecency regime” of requiring that “the
broadcaster … demonstrate to the satisfaction of the Commission,
under an unidentified burden of proof, that the expletives were
‘integral’ to the work … gives too much discretion
to government officials” in violation of the First Amendment.
The court noted that “all speech covered by the
FCC’s indecency policy is fully protected by the First Amendment.”
Although the court stopped short of saying that broadcast media
should be subject to strict First Amendment scrutiny, it observed
that it is getting extremely difficult to describe the broadcast
media as “uniquely pervasive,” as it was when the Supreme
Court first allowed more onerous restrictions on broadcast “speech.”
Accordingly, it cited the United States v. Playboy decision
for the proposition that strict scrutiny may soon apply to broadcasting.
The court cited the availability of less restrictive means of avoiding
the perceived harm through, for instance, the use of the V-Chip.
It concluded: “The FCC is free to regulate indecency, but
its regulatory powers are bounded by the Constitution. If the Playboy
decision is any guide, technological advances may obviate the constitutional
legitimacy of the FCC’s robust oversight.”
Coincidentally, the Second Circuit's decision issued later on the
same day the FCC's Daily Digest announced it had amended its rules
to implement the Broadcast Decency Enforcement Act, by revising
the provision that establishes the maximum possible forfeitures
for various offenses to reflect a tenfold increase in maximum fine
for indecency violations to $325,000 per violation up to a maximum
of $3,000,000 for any single act.
For further information, please contact:
This
advisory is a publication of the Communications Group of Davis Wright
Tremaine LLP. Our purpose in publishing this advisory is to inform
our clients and friends of recent developments in the communications
industry. It is not intended, nor should it be used, as a substitute
for specific legal advice as legal counsel may be given only in
response to inquiries regarding particular situations. Attorney
Advertising. Prior results do not guarantee a similar outcome. Thank
you.
Copyright © 2007, Davis Wright Tremaine LLP.
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