FCC Indecency Rules Too Vague, 2nd Circuit Holds

"The score for today’s game is First Amendment one, censorship zero,” said Andrew Schwarztman, senior vice president of Media Access Project, which represented artists’ groups siding with the broadcast network. “Media Access Project entered this case on behalf of writers, producers, directors and musicians because the FCC’s indecency rules are irredeemably vague and interfere with the creative process,” he said. “Today’s decision vindicates that argument. The next stop is the Supreme Court, and we're confident that the Justices will affirm this decision.”

The FCC is “reviewing the court’s decision in light of our commitment to protect children, empower parents, and uphold the First Amendment,” Chairman Julius Genachowski said. The Supreme Court had sent Fox v. FCC back to the 2nd Circuit following its decision upholding commission censure of Fox for the Billboard Music Award shows.

The 2nd Circuit acknowledged that media technology has changed greatly since the Supreme Court’s landmark FCC v. Pacifica Foundation indecency ruling, but that couldn’t change its legal analysis of the arguments. “Indeed, we face a media landscape that would have been almost unrecognizable in 1978,” the decision said. Beyond the pervasiveness of media platforms still nascent then such as the cable, direct broadcast satellite and the Internet, technologies such as the V-chip have given parents more control over what their children can see on TV, it said. “Nevertheless, as we stated in our previous decision, we are bound by Supreme Court precedent, regardless of whether it reflects today’s realities,” it said. “The Supreme Court may decide in due course to overrule Pacifica and subject speech restrictions in the broadcast context to strict scrutiny."

Because the FCC’s rules were so vague, the risk existed that broadcasters would steer so far away from airing anything that might be deemed indecent that they would censor themselves from airing legal and appropriate content, the court said. “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,” wrote Pooler. Also a risk: Targeted enforcement of the rules could be used to quiet certain media voices, the court said. “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 court signaled it thought the indecency rules should be subject to strict scrutiny under the Constitution, rather than intermediate scrutiny, and that’s significant, an industry executive said. “That was not decisional language. It was language they put in there that they wanted the court to see and to signal where they would go if it was their decision to make.” If the FCC appeals the decision to the Supreme Court, the court will probably decide to hear it, the executive said. The agency also has the option of seeking a rehearing at the 2nd Circuit. Meanwhile two other indecency cases are pending at the appeals court level. A different panel of 2nd Circuit judges will rule on a case involving NYPD Blue and three-judge panel of the 3rd U.S. Appeals Court in Philadelphia will rule on a case where CBS was fined $550,000 for Janet Jackson’s Super Bowl halftime breast-barring. Both sets of judges will probably read the Fox v. FCC decision closely, the executive said.

Fox praised the decision. “While we will continue to strive to eliminate expletives from live broadcasts, the inherent challenges broadcasters face with live television, coupled with the human element required for monitoring, must allow for the unfortunate isolated instances where inappropriate language slips through,” the company said. The ruling was backed by the NAB and Center for Creative Voices in Media and condemned by the Parents Television Council.