The US Court of Appeals for the Second Circuit in New York has
said that an indecency finding in 2006 against television network
Fox Broadcasting over two separate live swearing incidents went too
far. It also questioned the basis of a 2004 FCC policy revision
targeting 'fleeting' swearing.
The FCC’s policing of 'indecent' speech stems from section 1464
of the United States Code which provides that, “[w]hoever utters
any obscene, indecent, or profane language by means of radio
communication shall be fined under this title or imprisoned not
more than two years, or both.” The FCC’s authority to regulate the
broadcast medium is limited by the Communications Act, which
prohibits the FCC from engaging in censorship, but it has authority
to impose penalties for violations.
The Commission’s has long applied its own definition of indecent
speech: “indecent speech is language that describes, in terms
patently offensive as measured by contemporary community standards
for the broadcast medium, sexual or excretory activities and
organs. Such indecent speech is actionable when broadcast at times
of the day when there is a reasonable risk that children may be in
the audience.”
However, it also had a policy that a 'fleeting expletive' would
not be actionable. Fleeting swearing is the one-off, brief use of
swearing, usually in a live broadcast.
That policy changed in 2004, after a speech by Bono at the
Golden Globe Awards in 2002. Accepting an award, the U2 frontman
said, "this is really, really, fucking brilliant. Really, really
great.” The expletive was not repeated, but the FCC took the view
that it violated the rules on indecency.
The FCC's policy change on swearing is seen in the US as a
reflection of President Bush's views and the Court attacked its
constitutional basis.
The Court said that the FCC's "new policy sanctioning 'fleeting
expletives' is arbitrary and capricious … we are doubtful that by
merely proffering a reasoned analysis for its new approach to
indecency and profanity, the FCC can adequately respond to the
constitutional and statutory challenges raised by the
networks".
Fox was found to be in breach of the revised FCC rule in two
incidents, one involving singer Cher, the other involving socialite
turned TV personality Nicole Ritchie. Both incidents took place in
live, music-related programmes.
No penalty followed because the incidents predated the 2004 rule
change. In her acceptance speech at the 2002 Billboard Music
Awards, Cher had said: “People have been telling me I’m on the way
out every year, right? So fuck ‘em.”. When presenting the 2003
Billboard Music Awards, Richie had said: “Have you ever tried to
get cow shit out of a Prada purse? It’s not so fucking simple.”
Fox, backed by other networks, mounted a legal challenge to the
FCC's decision, claiming that the FCC had breached the US
Constitution's first amendment, which guarantees the right to free
speech.
The Court said that it agreed that the action was
unconstitutional, but its ruling was restricted to the specific FCC
rule change, saying that that banning of 'fleeting' swearing was
against the law.
The FCC is considering a Supreme Court appeal, and the
constitutional element of the case makes acceptance of it by the
Supreme Court more likely than it would be without any
constitutional claim.
"I'm disappointed in the court's ruling," FCC Chairman Kevin
Martin told the Washington Post. "I think the commission had done
the right thing in trying to protect families from that kind of
language, and I think it's unfortunate that the court in New York
has said that this kind of language is appropriate on TV."
The FCC has been clamping down on swearing on television more
vigorously than previously in the past four years. Last year it
requested that Congress increase the maximum fines it can levy for
indecency more than tenfold. Congress acceded to the request to
increase the maximum fine from $32,000 to $325,000.
The Parents Television Council said that the ruling "cleared the
way for networks to use the f-word and s-word in front of children
at any time of the day".
The Court addressed that claim in its ruling, though, saying
that this had not been the case before the FCC changed its
approach.
