Appeals court strikes down FCC indecency policy

[kpete]

Source: Talking Points Memo

Appeals court strikes down FCC indecency policy


Jul 13, 2010 13:45 EDT

NEW YORK (Reuters) - The U.S. Federal Communications Commission's indecency policy is unconstitutionally vague and could create a chilling effect beyond "fleeting expletives" heard on broadcasts, an appeals court ruled on Tuesday.

The ruling by the U.S. Court of Appeals for the 2nd Circuit in New York arose from a case over Bono, frontman of the rock group U2, who used an expletive when he received an award during the live broadcast of the 2003 Golden Globe Awards.

News Corp's Fox Television, CBS Corp's CBS Broadcasting and others sued the FCC, which regulates radio, television, wire, satellite and cable communications.

An FCC representative could not immediately be reached for comment on the ruling. The court heard the case again after the U.S. Supreme Court sent it back following a previous ruling that the FCC indecency policy was "arbitrary and capricious."

Read more: http://www.talkingpointsmemo.com/news/2010/07/appeals_court_strikes_down_fcc_indecency_policy.php?ref=fpblg

[sui generis]

1. a bit like the civility policy here

some days. Mostly works but has subtracted all the motherfucking color out of my wanly discombobulated cum guzzling gutter slut vagina lip presbyterian pronouncements.

[kysrsoze]

2. Fuck yeah!

:D

[Dogtown]

3. Excellent!

I hate the FCC more than MacFarlane does. They never should have existed.

[depakid]

9. Wow.

Well, you got the largely deregulated media that you wanted- and the culture of lies that's gone with it, so I suppose you ought to be happy.

[sui generis]

12. the FCC really shouldn't manage journalistic standards

That should be what editors are for.

Everything else that isn't true and sensational is libel, and there is a body of civil law to address libel.

There is no such thing as "obscenity" and I'll anyone to the mat on that. If we want a higher standard of formal speech then that starts with understanding why some parts of language are considered "vulgar". I remember when saying "that sucks" was akin to calling someone a cunt because it presumably referred to oral sex. Now it's part of the common vernacular.

Mostly laws made by prudes to enforce prudishness cannot stand the test of time. If you don't like a program because its moderators, emcees, or news anchors routinely use strong language, then RATE the program and let people make their own choices about whether or not to view it.

It really is that simple.

[Dogtown]

14. I believe you misunderstand me.

The only "regulation" I've seen the FCC perform since I started watching Howdy-Dowdy is forcing "street" characters to say "sucker" instead of "mother-fucker". They're only affective work is uber-conservative censorship.

As far as the media-monopolies that have arisen, those could have easily been adjudicated by other, more effective trust-busters. Unfortunately, the FCC claims jurisdiction and those other agencies are unable or unwilling to enforce their own regulations.

Look, I'm not a lawyer and the intricacies of government regulation are beyond my ken. What I *know* the FCC as is a government-nanny doing their best to protect me from hearing words I use on an hourly-basis.

If Medieval England had an FCC, Chaucer would've been bleeped.

I'm also pissed that Comcast can force me to pay for innumerable faith-based (Fundamentalist Xian) channels that I never watch. I may be wrong, but I blame the FCC's "regulation" for that.

[ProudDad]

4. Let me be the FIRST!!!

Shit
Piss
Fuck
Cunt
Cocksucker
Motherfucker
Tits

George Denis Patrick Carlin (May 12, 1937 – June 22, 2008)

http://en.wikipedia.org/wiki/Seven_dirty_words

[Tesha]

5. Sorry, he's still banned.

Only incidental swearing is allowed, not deliberate tirades of/about
cussing.

Tesha

[Milo_Bloom]

7. Actually....

Although this case was about incidental swearing, they struck down the entire policy.

"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"

[Tesha]

8. No, they didn't. What they struck down was the new approach taken by Bush's FCC. (NT)

[Milo_Bloom]

11. No, they actually struck down the ENTIRE POLICY.

http://www.nytimes.com/2010/07/14/business/media/14indecent.html?src=busln

This applies well beyond the case and they are currently ordered to come up with DEFINITIVE and MEASURABLE standards for ALL forms of "indecency".

"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"

[onenote]

13. they struck down the policy statement, not the underlying rule

The Carlin case was decided before there was a policy statement. Then there was a policy statement that muddied everything up. So now we're back to where we were before the policy statement

I suggest you read the opinion. Its clear that if someone broadcast the Carlin monologue and the FCC went after them, the FCC's action would be upheld.

[Milo_Bloom]

15. You are not understanding the ruling.

Right now, at this moment, the George Carlin routine is currently fine, because the ENTIRE POLICY has been struck down.

Is anyone going to air it? No, because the Supremes could still overrule it. But as of this moment, there is no existing rule against swears.

Let me explain this way.

The FCC had rules in place that Carlin violated.

What the Supreme Court ruling in Carlin established and this court agreed with is that the FCC "has the right to make rules".

They updated their rules and took them too far and made them vague (as per the 2nd circuit) and thus the ENTIRE POLICY is stuck down. (unless the Supremes say otherwise).

If the FCC does NOTHING. The policy is gone and people are free to air the Carlin routine.

If the FCC appeals, we remain in a weird grey area until the final ruling comes down.

If the FCC simply writes a new policy with very specific and definitive rules, that new policy will be in place, since the Carlin ruling established THE RIGHT of the FCC to make the rules and enforce them.

However, as of this moment in time... there is no rule in place!

Understand?

[onenote]

17. you're failing to understand the scope of the policy at issue

The policy at issue addressed fleeting expletives a distinction that the court carefully maintained. To explain:

Section 1464 of the US Code makes it unlawful for a broadcaster to utter "any obscene, indecent or profane language." Section 503(b)(1)(D) authorizes the FCC to impose civil forfeitures for violations of Section 1464.

When the Pacifica case was decided, the FCC did not have any formal policy guidelines. They had Section 1464 and Section 503. And their action was upheld.

Over the years, the FCC decided various cases arising under Section 1464 and Section 503 on an ad hoc basis. In the context of these decisions, a policy evolved of distinguishing "fleeting utterances" from the "verbal shock treatment" of the Carlin monologue (the Supreme Court's characterization, not mine). The latter were subject to enforcement actions, the former were not. In 2001, the FCC issued "industry guidance" regarding indecency that continued to indicate that fleeting utterances were not actionably indecent. It was not until 2004 that the FCC, in the context of the Golden Globes case involving Bono, announced that it was adopting a new policy regarding fleeting utterances under which they would indeed be actionable, at least in some instances. Again, nothing in this new policy was designed to change the longstanding policy towards Carlin-type utterances.

It is the 2004 policy on fleeting utterances that was the subject of the court case decided by the Second Circuit and it was that policy, which is impermissibly vague as to which fleeting utterances were indecent and which were not, that was struck down. All fleeting utterances are now okay unless and until the FCC adopts a new policy that is not impermissibly vague.

As for other forms of indecency that go beyond "fleeting" utterances, nothing has changed. They were not the subject of the policy at issue in the case and were not addressed in any fashion by the court. The court went out of its way to pay deference to the Supreme COurt decision in Pacifica - a decision that did not involve a fleeting utterance situation. It focused solely on the new policy regarding such utterances.

As someone who represents broadcasters and cable operators and who has participated over the years in a number of court cases involving the indecency standard and the Pacifica precedent, I can assure you that there is no lawyer representing a broadcaster who reads the second circuit case as opening the door for the broadcast of the Carlin monologue. It does free broadcasters from the uncertaintly as to whether a fleeting utterance will land them in hot water with the FCC.

[Milo_Bloom]

18. READ THE RULING!

No wonder I had to remove you from ignore to read your post.

The court SPECIFICALLY expanded the ruling BEYOND fleeting utterances, as I quoted earlier in the thread. (which was within their power to do)

This is a perfect example of why I stopped practicing law. Too many lawyers who work in industries fail to understand their own industries.

Back to to the ignore file with you.

[onenote]

19. Maybe its a good thing that you stopped practicing.

There is a statute that prohibits indecent broadcasts. The Court never suggests that the statute itself is unconstitutionally vague. Never. Rather, the court acknowledges that the Supreme Court in Pacifica found that the statute could constitutionally be applied to the Carlin monologue.

All that the second circuit did and could do was strike down the change in policy on fleeting expletives. It couldn't and didn't strike down the statutory ban on indecency as impermissibly vague.

The sentence from the court's opinion that you quoted stated that the FCC policy was being struck down because it is unconstitutionally vague, "creating a chilling effect that goes far beyond the fleeting expletives at issue here." That does not mean that the court was holding the indecency law unconstitutionally vague as applied to any speech. It was saying, as is clear from the discussion in Section III of the opinion, that the policy on fleeting speech is unconstitutional because it (not the general prohibition on indecency) is chilling protected speech. THe Carlin monologue, however, is not protected speech under the holding of the Pacifica decision, which the court expressly said it was required to honor.

[Tesha]

20. No problem then.

Step 1: Go buy a TV or Radio station.

Step 2: Broadcast George Carlin's comedy shtick.

Let us know how much you then are forced to spend on lawyers
to defend yourself.

Tesha

[Milo_Bloom]

22. Please read what was written.

[Milo_Bloom]

6. And a merry merry fuck you day to all!!

[alp227]

10. Predictable response by the Parents Television Council:

http://parentstv.org/PTC/news/release/2010/0713.asp

“Let’s be clear about what has happened here today: A three-judge panel in New York once again has authorized the broadcast networks unbridled use of the ‘f-word’ at any time of the day, even in front of children. The Court substituted its own opinion for that of the Supreme Court, the Congress of the United States, and the overwhelming majority of the American people. For parents and families around the country, this ruling is nothing less than a slap in their face. FCC Chairman Julius Genachowski and the Obama administration must immediately appeal,” said PTC President Tim Winter.

“Today’s ruling comes as absolutely no surprise, given the hostile tenor of the judges during oral arguments. Members of the Second Circuit panel entered the courtroom that day wearing their intentions clearly on their sleeves. What does come as a surprise is the rationale of the opinion, which is devoid of reality. The Court’s illogical analysis would require the overturning of virtually every law on our nation’s books for lack of clarity.

Still there are those who get a heart attack or run for the hills or hide the children simply from hearing a four-letter word. But when the media gets sucked up by lying corporations who screw up news divisions with an agenda? Nothing. I find most of conservative talk radio 100,000 times more offensive than an accidental utterance of "this is really, really effing awesome" on an awards show.

And regarding children, isn't the way America is way more indecent than what's on TV? I mean there are kids out there with bad parents, whose families can't afford anything, who are attending crummy public schools (I should've put the worse word to replace crummy but yeah), and...? Where are the big powerful orgs lobbying to solve THOSE problems?

Now lemme tell y'all about an experience watching live TV with the editing that the PTC and such groups so desire. Late during this year's Grammy ceremony on CBS (it was around 11PM Eastern, and I was watching the show live on a pirated CBS stream while in California) Drake, Eminem, and Lil Wayne performed "Forever" and "Drop the World" in a medley. Those songs have profane instances, but CBS ended up muting entire lines rather than just the words. In the tape-delayed west coast broadcast, the editing was improved.

Finally, my personal opinion about broadcast regulation is that the FCC should reasonably make sure that TV does not deliberately seek to corrupt our youth. I'd rather not the networks showing uncut rated-R films or porno during the daytime; if I wanted to watch 'em on my own time I'd either search the Internet or save up some money myself. The US is so full of prudes that networks go outta their ways to censor themselves (the CBS/Grammy example above is just one...think about ABC/Saving Private Ryan in 2004 too). Hell, Channel 4 in the UK leaves profanity intact on after-hours (post-9PM) shows...for example The Sopranos has been shown on 4 on an overnight 2AM slot. I have no problem with bleeps or blurs on network TV just because America ain't used to it yet and there are enough pressure groups.

[IrishBuckeye]

16. FCC Commissioner Michael Copps calls it anti-family

Who the fuck is he to tell me what is family and anti-family?

[jmowreader]

21. What the policy SHOULD be

Shows directed toward children, or intended for the entire family and shown before 10pm: no obscenity of any kind.

Shows aired after 10 pm: no sexual or racist language, but terms like damn, hell, shit and piss would be okay if they fit into the storyline. You can also use terms referring to male sexual organs in a nonsexual manner: you can call someone a dick or talk about getting kicked in the nuts, for instance.

News shows: Incidental curse words can be used only in live location reporting. If someone's out reporting on traffic congestion and a truck runs into a car right in front of the reporter, the "holy fuck" that would come out of the woman's mouth would be allowed.

Weather reporting: Curse words would be allowed at all times, because when it's cold enough to freeze your nuts off, the weatherman should be able to say so.