Second Circuit finds for networks in FCC indecency challenge


The Supreme Court ordered the Second Circuit to review its decision on FCC punishment of fleeting expletives. It did, saying “We now hold that the FCC’s policy violates the First Amendment because it is unconstitutionally vague, creating a chilling effect that goes far beyond the fleeting expletives at issue here. Thus, we grant the petition for review and vacate the FCC’s order and the indecency policy underlying it.”

After citing various examples, the Court wrote, “the absence of reliable guidance in the FCC’s standards chills a vast amount of protected speech dealing with some of the most important and universal themes in art and literature. Sex and the magnetic power of sexual attraction are surely among the most predominant themes in the study of humanity since the Trojan War. The digestive system and excretion are also important areas of human attention. By prohibiting all ‘patently offensive’ references to sex, sexual organs, and excretion without giving adequate guidance as to what ‘patently offensive’ means, the FCC effectively chills speech, because broadcasters have no way of knowing what the FCC will find offensive. To place any discussion of these vast topics at the broadcaster’s peril has the effect of promoting wide self-censorship of valuable material which should be completely protected under the First Amendment.”

The Court concluded, “For the foregoing reasons, we strike down the FCC’s indecency policy. We do not suggest that the FCC could not create a constitutional policy. We hold only that the FCC’s current policy fails constitutional scrutiny. The petition for review is hereby GRANTED.”

The case in question is Fox Television Stations Inc., CBS Broadcasting Inc., WLS Television Inc., KTRK Television Inc., KMBC Hearst-Argyle Television Inc.., ABC Inc., Petitioners v. Federal Communications Commission, United States of America.

Others supporting the Petitioners included NBC Universal Inc., Telemundo Licenses Co., NBC Television Affiliates, FBC Television Affiliates Association, CBS Television Network Affililates, Center for Creative Community Inc. d/b/a Center for Creative Voices in Media Inc., and ABC Television Affiliates Association.

RBR-TVBR observation: This is more than a victory for broadcasters. It’s a victory for the First Amendment. It clearly does not signal the end of indecency enforcement. But if this ruling sends the FCC back to the drawing board rather than back to the Supreme Court, perhaps the Commission will come up with sensible rules that do not over-reach and are possible to understand and follow. It’ll be difficult – there’s no getting around the gray area inherent in any attempt to regulate speech – but we can only hope for a better system in the future.