Today the Indecency Rules, Tomorrow Pacifica

As Jesse Walker noted earlier this afternoon, a federal appeals court today overturned the FCC's policy of fining broadcasters for "fleeting expletives" uttered during live shows. But the decision (PDF) by the U.S. Court of Appeals for the 2nd Circuit goes further than that, rejecting the FCC's general policy regarding broadcast indecency as unconstitutionally vague. That policy defines indecency as material that "describe[s] or depict[s] sexual or excretory organs or activities" in a manner that is "patently offensive as measured by contemporary community standards for the broadcast medium." Such material may not be aired between 6 a.m. and 10 p.m., and fines can total tens of millions of dollars per violation. Noting the difficulty of predicting how the FCC will interpret its rules, the 2nd Circuit concluded that the indecency ban has "a chilling effect that goes far beyond the fleeting expletives at issue here." A few examples of the FCC's haphazard approach to enforcement:

Although the Commission has declared that all variants of "fuck" and "shit" are presumptively indecent and profane, repeated use of those words in Saving Private Ryan, for example, was neither indecent nor profane. And while multiple occurrences of expletives in Saving Private Ryan was not gratuitous, a single occurrence of "fucking" in the Golden Globe Awards was "shocking and gratuitous." Parental ratings and advisories were important in finding Saving Private Ryan not patently offensive under contemporary community standards, but irrelevant in evaluating a rape scene in another fictional movie. The use of numerous expletives was "integral" to a fictional movie about war, but occasional expletives spoken by real musicians were indecent and profane because the educational purpose of the documentary "could have been fulfilled and all viewpoints expressed without the repeated broadcast of expletives." The "S-Word" on The Early Show was not indecent because it was in the context of a "bona fide news interview," but "there is no outright news exemption from our indecency rules."…

The "artistic necessity" and "bona fide news" exceptions allow the FCC to decide, in each case, whether the First Amendment is implicated. The policy may maximize the amount of speech that the FCC can prohibit, but it results in a standard that even the FCC cannot articulate or apply consistently. Thus, it found the use of the word "bullshitter" on CBS's The Early Show to be "shocking and gratuitous" because it occurred "during a morning television interview," before reversing itself because the broadcast was a "bona fide news interview." In other words, the FCC reached diametrically opposite conclusions at different stages of the proceedings for precisely the same reason—that the word "bullshitter" was uttered during a news program. And when Judge Leval asked during oral argument if a program about the dangers of pre-marital sex designed for teenagers would be permitted, the most that the FCC's lawyer could say was "I suspect it would." With millions of dollars and core First Amendment values at stake, "I suspect" is simply not good enough.

The decision cites evidence that the FCC's arbitrary application of its vague, subjective standards has deterred broadcasters from airing constitutionally protected material, including political debates, live news feeds, novel readings, and award-winning shows dealing with sexual themes. "By prohibiting all 'patently offensive' references to sex, sexual organs, and excretion without giving adequate guidance as to what 'patently offensive' means," the court concludes, "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."

Although the court leaves open the possibility that the FCC could come up with a new indecency policy that would pass constitutional muster, it strongly suggests that the Supreme Court's justification for allowing the regulation of content on broadcast TV and radio, set forth in the 1978 case FCC v. Pacifica, is no longer valid. Given the enormous changes in the media environment since then, the 2nd Circuit notes, broadcasting is no longer "uniquely pervasive" or uniquely accessible to children: It is but one of many media options, and parents can exercise the same sort of control over their children's viewing regardless of whether programming arrives over the air, by cable, by phone line, or by satellite. In light of these realities, it is long past time (as Jesse and I have argued) to overturn Pacifica, a step the 2nd Circuit leaves to the Supreme Court.