Fox wins third round in long-running slug-fest; next stop – the Supreme Court?
In a huge win for broadcasters and First Amendment-loving citizens, the U.S. Court of Appeals for the Second Circuit has struck down the FCC’s indecency policy. According to the Court, that policy violates the First Amendment because it is unconstitutionally vague and creates a “chilling effect” on constitutionally protected free speech. Importantly, the Court’s decision extends beyond the “fleeting expletives” aspect of indecency regulation (which was the original focus of the case) and, instead, strikes down the FCC’s fundamental policy on indecency.
The Second Circuit issued its opinion in Fox v. FCC, about which we have written before (check here and here and here, for examples). The case involves comments made in front of an open mike by (a) Cher (“fuck ’em”) and (b) Nicole Richie (“Have you ever tried to get cow shit out of a Prada purse? It’s not so fucking simple.”).
The FCC initially held that those comments, which were broadcast by Fox, were indecent. Fox appealed to the Second Circuit and, in 2007, the Circuit overturned the FCC’s policy on technical, administrative law grounds. As the Second Circuit saw it, the supposedly indecent remarks were “fleeting expletives”, the kind of incidental, extemporaneous exclamations that the FCC had historically not penalized. While that hands-off policy had changed with the 2004 Bono/Golden Globes decision (involving a broadcast in which Bono, upon receiving an award, famously exclaimed, “This is really, really, fucking brilliant” ), in its first whack at the Fox case in 2007 the Second Circuit determined that the FCC had not adequately explained the shift in its treatment of “fleeting expletives”.
In 2009 the U.S. Supreme Court reversed that narrow decision, holding that the FCC’s explanation was just fine, thank you. The Supremes shipped the case back down to the Second Circuit for another look. The Second Circuit’s initial opinion had included an extended, non-decisional discussion of constitutional issues – a discussion which unmistakably indicated that the Circuit felt the FCC’s policy to be unconstitutional. As a result, many – possibly most – observers figured that the Second Circuit would use this second bite at the apple to reach the constitutional issue for real.
The Second Circuit did not disappoint.
Acknowledging that the Supreme Court (in the 1978 Pacifica case) had clearly held that the Constitution permits some regulation of indecency, the Second Circuit observes that the media landscape has changed dramatically in the 30 years since Pacifica. The overwhelming penetration level of cable and satellite services and the development of an “omnipresent” Internet offering all sorts of video programming starkly contrast with the state of affairs in 1978, when broadcast media occupied a “uniquely pervasive presence in the lives of all Americans”. The Circuit also notes the technological controls now available to help parents police content in their own homes.
But even within the confines of Pacifica, the Second Circuit concludes that the FCC’s policy on indecent broadcasts exceeds Constitutional limits because the policy is impermissibly vague.
Significantly, the Circuit’s ruling targets the FCC’s entire indecency standard – not just the “fleeting expletives” component that was the focus of its 2007 opinion.
In a tour de force of First Amendment analysis, the Second Circuit takes apart virtually every element of the FCC’s policy and the FCC’s defense of that policy. The Circuit finds that the standard itself is so vague that neither the broadcast industry nor the FCC itself could ever be certain which words or images qualify as “patently offensive” under the existing standard. The Court also observes that the FCC’s presumptive prohibition against the words “shit” and “fuck” can’t survive because the FCC can’t justify why some uses of those words have been prohibited and some not.
For example, how could the FCC permit the broadcast of repeated uses of certain “bad” words by fictional soldiers in Saving Private Ryan, but proscribe the use of those same words by real life musicians in a documentary about the blues? The Commission has on occasion attempted to explain its actions on the basis of such factors as whether the words are “integral” to a particular program or whether the program is a “bona fide news interview”. But in the Circuit’s view, “[t]here is little rhyme or reason to these decisions”.
The Second Circuit describes the enormous First Amendment harms that naturally flow from “the FCC’s indiscernible standards”. The Court notes the inherent risk that vague standards applied on an “ad hoc” basis by government officials allows for the suppression of particular points of view: “it is hard not to speculate that the FCC was simply more comfortable with the themes in ‘Saving Private Ryan,’ a mainstream movie with a familiar cultural milieu, than it was with ‘The Blues,’ which largely profiled an outsider genre of musical experience.”
The Circuit also recognizes that the FCC’s vague standards force broadcasters to choose between (a) censoring controversial programs and (b) risking massive fines or loss of licenses – the unsurprising result being that many broadcasters choose to self-censor. According to the Court, concern about possible FCC enforcement efforts has prompted stations to edit or refuse to air a wide range of programming, including a documentary on the September 11th World Trade Center attack, literary readings, live news programs, political debates, sitcoms and dramatic programs.
And with that, the Second Circuit has struck down the FCC’s indecency policy. While the Court acknowledges that, unless and until Pacifica is overruled, the FCC could conceivably create a constitutional policy, the agency’s current policy does not pass Constitutional muster.
The Second Circuit’s decision represents an unambiguous defeat of the FCC’s current indecency policy – but it’s not likely the last word on the subject. The FCC will almost certainly appeal to the Supreme Court. And let’s not forget that the Third Circuit still has the Janet Jackson Super Bowl case pending – raising the possibility of conflicting decisions between the two federal courts. Such a “circuit split” would virtually guarantee a Supreme Court review.
The prospect of Supreme Court review focusing on the constitutionality of indecency regulation is particularly exciting because, in his separate opinion in the Supreme Court’s 2009 Fox decision, Justice Thomas specifically invited reconsideration not only of Pacifica, but also of Red Lion. Red Lion is the 1969 Supreme Court decision upholding the Fairness Doctrine (and, by implication, special regulatory treatment for broadcasting) because of the supposed “scarcity” of broadcast spectrum. Thomas referred in particular to the “questionable viability” of both Red Lion and Pacifica. If four of his colleagues were to agree with Thomas that the scarcity rationale is no longer valid, that could cause massive upheaval in virtually every aspect of the FCC’s operation.
In the meantime, broadcasters should not take the decision as a green light to start airing “R” rated movies at mid-day. The Second Circuit struck down the FCC’s policy interpreting the federal statute prohibiting “obscene, indecent or profane language” but not the statute itself. In other words, it’s still technically illegal to broadcast such fare, even if there is no obvious way in which the government could penalize it in the wake of the Second Circuit’s decision. As has always been the case, broadcasters will need to continue to exercise good judgment in their selection of programming. We, as always, will stay tuned.