2nd Circuit Rejects FCC’s “Fleeting Expletives” Policy; Questions Indecency Regime

On June 4, 2007, the United States Court of Appeals for the 2nd 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 2nd 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 2nd 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 2nd 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 million for any single act.