In Praise of Judge Rosemary Pooler


Have I mentioned what a pleasure it is to read this week's 2nd Circuit broadcast indecency decision? Download the pdf and take a look. It's as good a summary as you'll find of why the Federal Communications Commission's attempts to regulate dirty words are caught in a double bind, either too vague to pass constitutional scrutiny or too narrow to stop the sorts of speech that the rules were designed to prevent. I know nothing else about the jurisprudence of Judge Rosemary S. Pooler, but if this is typical of her work, I'm a fan.

The indecency rules are rooted in the Supreme Court's Pacifica decision (1978), which upheld the FCC's right to sanction a station for airing a George Carlin routine at two in the afternoon. The routine in question is often known as "Seven Words You Can Never Say on Television," and because those seven words stand at the center of this legal thicket there's a misconception that there's a simple list of verboten terms that you can't say on the air, a clear-cut collection of do's and don'ts that anyone can easily obey. There isn't. In the first decade following the Pacifica ruling, the FCC did stick to prohibiting the seven words in Carlin's monologue, but in 1987 the agency announced that this had led to "anomalous results that could not be justified." Translation: The rule allowed broadcasters to say offensive things as long as they avoided a few specific words, and the FCC didn't like to have its hands tied. So the commission adopted a looser standard, and while it initially remained relatively restrained in how it applied the revised rules, all caution went out the window with the great indecency crackdown of the '00s.

That's the context in which the 2nd Circuit Court declared the indecency regs "impermissably vague" earlier this week. To illustrate the arbitrariness of the regulations, Judge Pooler cited a puzzling series of decrees:

[W]hile the FCC concluded that "bullshit" in an "NYPD Blue" episode was patently offensive, it concluded that "dick" and "dickhead" were not. Other expletives such as "pissed off," "up yours," "kiss my ass," and "wiping his ass" were also not found to be patently offensive. The Commission argues that its three-factor "patently offensive" test gives broadcasters fair notice of what it will find indecent. However, in each of these cases, the Commission's reasoning consisted of repetition of one or more of the factors without any discussion of how it applied them. Thus, the word "bullshit" is indecent because it is "vulgar, graphic and explicit" while the [word] "dickhead" was not indecent because it was "not sufficiently vulgar, explicit, or graphic." This hardly gives broadcasters notice of how the Commission will apply the factors in the future.

The confusion was only compounded when the FCC declared that sometimes a fleeting "fuck" or "shit" is acceptable, as long as it's either "bona fide news" or "demonstrably essential to the nature of an artistic or educational work." And the confusion was really compounded when the same commission that created the "bona fide news" standard also insisted that "there is no outright news exemption from our indecency rules."

The FCC still argues that it needs a loose standard to prevent indecency from assaulting American ears, lest broadcasters find creative new ways to be offensive that avoid the proscribed words. Here is Judge Pooler's response, which by itself is almost enough for me to wish someone would put her on the Supreme Court: "The observation that people will always find a way to subvert censorship laws may expose a certain futility in the FCC's crusade against indecent speech, but it does not provide a justification for implementing a vague, indiscernible standard."