Court Ruling on FCC Indecency Policy Gets Mixed Reactions

By Nathan Black, Christian Post Reporter Thursday, July 15, 2010

Conservative media watchdogs gave mixed reactions to Tuesday's federal appeals court ruling that struck down the Federal Communications Commission's indecency policy.

Tim Winter, president of the Parents Television Council, blasted the decision, commenting, "A three-judge panel in New York once again has authorized the broadcast networks unbridled use of the 'f-word' at any time of the day, even in front of children. For parents and families around the country, this ruling is nothing less than a slap in their face."

But Morality in Media President Robert Peters partly agreed with the court, noting that the current FCC policy "is a mess."

He said in a statement Wednesday that the FCC should craft a more coherent policy with input from the public and broadcast industry.

The Court of Appeals for the Second Circuit in New York ruled unanimously on Tuesday that the FCC policy violates the First Amendment because it is "unconstitutionally vague."

According to the FCC policy, a single, nonliteral use of an expletive (a so-called "fleeting expletive") could be actionably indecent. The rule came after music artists uttered the four-letter word during live televised award shows, including U2's Bono at the 2003 Golden Globe Awards and Cher at the 2002 Billboard Music Awards.

Fox, CBS and other television networks sued the FCC in 2006 after the commission ruled that they violated the indecency policy. They argued that the FCC did not adequately explain why it changed its policy. Previously, the commission had consistently held that a single, non-literal use of an expletive was not actionably indecent.

The networks also complained that the decency standards were vague.

For instance, the FCC concluded that ABC's airing of the film "Saving Private Ryan," which contained multiple occurrences of expletives, in 2004 was not offensive but the airing of the same profanities in the documentary "The Blues" was. The FCC has also ruled that the "s-word" on The Early Show was not indecent because it was in the context of a "bona fide news interview" but added that "there is no outright new exemption from our indecency rules."

In 2009 the Supreme Court ruled that the FCC may penalize networks for even the occasional use of expletives but did not rule on the constitutionality of the policy. The case was remanded back to the appeals court.

The appeals court determined that the FCC "created these exceptions because it recognized that an outright ban on certain words would raise grave First Amendment concerns." The current standards are also ones that even the FCC cannot articulate or apply consistently, the court stated in its opinion.

"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," the panel said. "Indeed, there is ample evidence in the record that the FCC's indecency policy has chilled protected speech."

The FCC's current policy, the court ruled, fails constitutional scrutiny.

In a released statement, the FCC responded, "Sadly, the court focused its energies on the purported chilling effect our indecency policy has on broadcasters of indecent programming, and no time focusing on the chilling effect today's decision will have on the ability of American parents to safeguard the interests of their children."

While the FCC hopes the decision is appealed and will ultimately be reversed, it is, in the meantime, moving forward to "clarify and strengthen its indecency framework to ensure that American parents can protect their children from the indecent and violent images that bombard us more and more each day."

Peters of Morality in Media believes the public and broadcasters would benefit from a clearer policy. But it shouldn't be needed, he said.

TV networks once had an industry-wide code with self-imposed standards that generally reflected community standards, Peters noted. But today, "they would rather play a cat and mouse game with the FCC, constantly pushing the envelope and then complaining that they don't know whether the FCC will deem this or that transgression of community standards actionable."

"[W]hen it comes to the well-being of children, broadcasters should know what is and isn't appropriate and act accordingly. If they don't know, they shouldn't be broadcasters," he stated.