The battle over fleeting expletives returned to the Second Circuit Court in New York, and the FCC found a skeptical audience behind the bench. All three judges kept Commission counsel on the defensive, and strongly indicated that the FCC’s rules would be overturned.
The case, FCC v. Fox Television, had been remanded to the Second Circuit by the Supreme Court, dates back to live awards programs in 2002 and 2003 during which various celebrities let verboten words slip out over the air.
The FCC’s operating principles at the time supposedly exempted inadvertent, non-repetitive slip-ups from full punishment, and indeed, guidelines put out by former FCC Chairman Michael Powell included examples of the types of slips that would likely not result in a monetary forfeiture.
The Janet Jackson Super Bowl incident instantly changed the indecency climate, and Powell personally overruled his own Enforcement Bureau, which had found such incidents inactionable, saying that certain words were always impermissible, whether they went out over the air by accident or not.
Congress also stepped in, upping the top-drawer indecency fine from $32.5K to $325K, a tool which the FCC has yet to utilize while the various indecency cases make their way through the courts.
According to law.com, the attorney representing the FCC, Jacob Lewis, had to deal with questions about the vagueness of the FCC’s rules and the chilling effect they may have on free speech.
Gibson, Dunn & Crutcher attorney Miguel A. Estrada, working for intervenor NBC, said that the FCC believes it is in touch with community standards but in fact was responding to complaints generated by “a roving band of censors.” He also argued that the FCC was unpredictable, referring to its allowance of expletives in a Steven Spielberg production but not in one put out by Martin Scorcese.
RBR-TVBR observation: The fleeting expletive exception has served America well for a long time. It allows the broadcast of live news, entertainment and sporting events. And the simple fact is that every day, thousands of broadcast stations operate 24 hours without a single slip-up. Slip-ups are exceedingly rare.
The FCC’s decision to suddenly ramp up enforcement of fleeting expletives was an ill-considered over-reaction to Jackson’s 9/16-second indiscretion. The Court would do well to shoot it down, and the FCC would be wise to accept the Court’s verdict.