The US Court of Appeals for the Second Circuit today struck down the FCC’s indecency rules, finding that the rules were so vague as to not put broadcasters on notice of what programming was prohibited and what was permitted. Today’s decision was reached following a remand of this case to the Second Circuit by the Supreme Court. The Supreme Court’s decision did not resolve all questions about the FCC’s rules, instead only deciding that the lower court’s prior decision voiding the rules was not justified. The prior Second Circuit decision had not been decided on a constitutional basis, but instead it was based on the Court’s perception that the FCC had failed to justify its departure from prior FCC precedent that had excused broadcasters from liability for fleeting expletives. The Supreme Court found that the departure from prior precedent was justified. The Supreme Court left open the issue of whether the rules were constitutional, and sent the case back to the Second Circuit for further consideration. In today’s decision, the Second Circuit takes up the constitutional review left open by the Supreme Court, and has determined that the vagueness of the FCC’s guidelines and the inconsistency in its decisions chilled the First Amendment rights of broadcasters in violation of the First Amendment.
The Court, in reaching its decision, looked at a number of the Commission decisions on indecency which have arisen since the Commission started its enhanced enforcement of these rules in 2003. After reviewing the cases, the Court felt that the FCC could not logically articulate when the use of certain prohibited words would be punished. In one passage, the Court asks how the FCC can find that the broadcast use of expletives in the fictional movie Saving Private Ryan were permissible as the words were essential "to the realism and immediacy of the film experience for viewers", yet at the same time find that these same words did not rise to that same level of importance when spoken by real people in the PBS documentary The Blues. The Court then cited numerous instances where broadcasters felt that their speech had been chilled – often refraining from airing significant programming for fear of FCC fines. For instance, the Court cited one station that refused to cover a political debate as a candidate had previously used a forbidden word in a prior debate, and another case where stations did not run a documentary about emergency workers and the 9-11 tragedy as the documentary contained some actual footage from the Twin Towers, where emergency workers used some of those forbidden words.
So what’s next? No doubt, we have not heard the last of the indecency rules. The FCC could appeal this case back to the Supreme Court. Even were the Second Circuit’s decision upheld, that would still not be the end of the story, as the Second Circuit left open the possibility that the FCC could craft new rules that would not be so vague as to be unconstitutional. So we may well be hearing about the controversy about the FCC’s indecency rules for many years yet to come. Watch this space for more further developments.