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.

NEXT: Jacob Lew, the White House's New Budget Romantic

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  1. But the FCC has no problem with violence, right? That’s good for gun owners, isn’t it? Why always focus on the negative?

    1. Christ your life must be pathetic.

      Just sitting there waiting for a new H&R post to pop up so you can post something stupid.

      I actually feel sorry for you.

      1. How would you know this if you weren’t sitting around waiting for me to post? The only thing more pathetic would be someone sitting around waiting for you to react to might post. Are you jealous that I’m often first?

      2. How would you know this if you weren’t sitting around waiting for me to post? The only thing more pathetic would be someone sitting around waiting for you to react to might post. Are you jealous that I’m often first?

        1. I’m guessing it’s because when people open a page, you’re always at the top or very near it. I just got here, but can see you posted first about an hour ago. I suspect SSBG (and eveyone else) noticed that too.

  2. I can’t wait for the good ole-fashioned down home leave it to beaver humor of the upcoming show “S&%$ my dad says…”

    1. The second episode of Leave It to Beaver was originally not allowed to air (it was initially planned to be the first episode) because it showed Wally and the Beaver together in the upstairs bathroom with a toilet (they were keeping a small aligator in the toilet tank).

      1. I was channel-flipping one time and encountered a Leave It To Beaver episode involving a neighbor who had guns in his house. This was produced during the era when seemingly all boys wanted a BB gun, and Beaver was in awe of real firearms. Ward and June just took this in stride, as if it were perfectly normal for ordinary folks and their neighbors to have guns in the house — BECAUSE IT WAS. I wonder what the PC police would have to say about that episode.

    2. Ward, I think you were a little hard on the Beaver last night.

  3. Well fuckity fuck fuck fuck!

    1. Fuck, you beat me to it.

  4. Broadcast TV needs more boobs.

    1. Ever watch The View?

      1. Teh stoopid is so strong that I can’t watch this even with the volume down. Boobies notwithstanding.

        1. Those lip reading classes don’t seem so handy now, do they smartguy?

  5. Point #24 of American Communist goals in the 1950s:

    Eliminate all laws governing obscenity by calling them “censorship” and a violation of free speech and free press.


    1. And when I think of Communism, I sure think of “free speech and free press” all right. Ask any murdered Russian journalist, vanished Chinese dissident, or TV network owner in Venezuela.

      1. I can attest from personal experience that porn sites are blocked by the Chicomm filters.

    2. Gentlemen (and Dagny): it looks like we have an actual Bircher here. Rather than attack this rare, endangered creature we should study it. There are so few remaining. I know I’m going to bring my granddaughter to see this; even though she won’t understand now, some day she will realize she got to see the last one living in the wild. Rather like the late, lamented Dodo.

      1. *Hands plastic cup to TEA*

        Could we perhaps have a urine sample? And maybe some of your hair?

        1. Already covered, Addy. These guys leave recoverable genetic samples with their spittle-flecked rants. Already got some in the cryo-vat.

          But if you could find it in your heart to “chip” him, the NWO will make it worth your while.

          1. Depends….will our future Illuminati masters provide me with fine-tasting meats and womens?

  6. They don’t leave the decision to the SC. They cannot overturn Pacifica.

  7. This is a great decision.

    Would overturning Pacifica lead to more boobies on TV? Or would it only allow “fuck” and “shit” et al?

    1. Overturning Pacifica and Red Lion in the broadest way possible would remove the FCC’s power completely. It would have no more power than it does over cable.

      It’s certainly possible for the Court to simply narrow the rulings, though.

    2. Does anyone actually watch broadcast TV anymore? Aside from sports.

      1. Not even sports.

  8. Fuck the FCC.

    1. Fuck ’em. Fuck ’em!

  9. Around the office, we say “wee-wee” and “hoo-hoo.” Also, “tinkle” and “poopies.” Sometimes our mommies come to visit and bring us Fruit Roll-Ups and juice boxes. We love our mommies!

    Pro Libertate, we say “darn” instead of that naughty word. Our mommies would wash out our mouths with soap if we said that! Gee, mister, why do you hate us so much? We’re just trying to protect you from bad things, like ladies’ private parts and naughty words. You can go to the bad place if you’re around any of that stuff! Is that what you want?

    1. You’re right.

      Kill the FCC.

  10. It is possible that a big-budget picture made by a billionaire big-name director actually has room in its budget for bribes to public officials. The rulings seem arbitrary enough that one wonders whether greased palms are a factor.

  11. With regard to content, broadcasters need to be treated as if they were magazine or newspaper publishers. If someone wants to sue them in court for violating local or regional obscenity laws, have at it. But the effect of the law that Congress passed to establish and empower the FCC should not be to abridge freedom of speech or of the press in any way.

    Just as the Justices eventually (reluctantly?) concluded that the 2nd Amendment protects an individual right, so must they eventually admit that a broadcast transmitter is a form of “press” as well as a form of “soapbox.”

    FCC delenda est.

  12. IANAL, but I don’t think this can directly overturn Pacifica. Pacifica was a SCOTUS decision and USCA2 is a court of inferior jurisdiction to The Supremes. USCA2 decisions are only binding in PA, NJ and DE.

    RC, John, or any other JDs, can you weigh in on this?

    1. The point is that if the DoJ appeals, then the Supreme Court could use it to overturn Pacifica.

      1. Agreed. And I think the votes are there, too.

    2. You’ve got the concept right, but the states wrong. The 2nd Circuit covers VT, CT, and NY — NY being the big banana (and the “location” of the Court).

      As others have said, though, let’s hope the DOJ appeals to the Supremes, who may very well affirm (notwithstanding Kagan).

  13. How the fuck can a government agency covering an entire continent that spans California to the Bible Belt enforce “community standards”. There’s no damn community to have a standard. Even if there is obscenity-based censorship, surely only the people in broadcast range of the station in question deserve any say in the definition of a community standard.

  14. One unintended and undesirable consequence of this laudable decision is that the censorship talking point can’t be used in arguments against Net Neutrality regulations by the FCC.

  15. America, Fuck Yeah!

  16. 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.

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