Posted on June 23, 2008 by David Oxenford

George Carlin - Writing the Indeceny Rules the FCC Never Did

Today's morning newscasts were filled with the stories of the passing of George Carlin - a comedian and satirist who effectively wrote the indecency regulations that most broadcasters abide by - without the FCC ever having had to adopt the regulations that he attributed to them.  In the broadcast world, Mr. Carlin was probably best known for his routine about the Seven Words that You Can Never Say on TV.  When that routine was aired by a New York radio station, and heard by a parent who claimed that he had a child in his car when the routine came over his radio in the middle of the day, the resulting FCC action against the station resulted in appeals that ended in the Supreme Court which, in its Pacifica case, upheld the right of the FCC to adopt indecency rules for the broadcast media to channel speech that is indecent, though not legally obscene, into hours when children are not likely to be listening.  But what this case and the FCC ruling did not hold are perhaps more misunderstood than what the case did hold.

First, the case was about "indecency" not "obscenity."  Many of this morning's newscasts referred to the Pacifica decision as being an Obscenity decision.  Obscenity is speech that can be banned no matter what the time and place, as it is speech that is deemed to have no socially redeeming value.  Indecency, on the other hand, is a far more limited concept.  Indecent speech is speech that is constitutionally protected - it has some social significance such as the social commentary clearly conveyed by the Carlin routine.  It cannot be constitutionally banned.  But the Supreme Court upheld the FCC's decision in the Pacifica case that, because of the intrusive nature of the broadcast media, it can be limited to hours where children are not likely to be in the audience.  Hence, the FCC has a "safe harbor" that allows indecent programming between the hours of 10 PM and 6 AM, when "obscene" programming is never allowed on the air.

But perhaps the greatest misimpression of the Carlin routine is the widely held belief that there are in fact Seven Dirty Words that you can never say on the air.  In fact, that is not and has never been the FCC's holding.  In fact, until recently, there were no words that were specifically banned on the air - all had to be evaluated by context.  Even though recent FCC decisions have tried to make the "F-word" and the "S-word" into those words that you can never say on TV (or radio) outside the safe harbor, even those bans are not absolute as the FCC's approval of the airing of Saving Private Ryan during prime time hours has shown.  (and, as we have written before, these new rules have not fared well so far in the Courts and may be headed back to the Supreme Court for further review).  The other words in the Carlin routine have never been specifically prohibited in all contexts - some in fact have been deemed not by themselves indecent in subsequent FCC cases.  Instead, under the rules that the FCC has tried to enforce, a contextual review of the program must be done to determine if, in context, the words were used to shock or titillate, and whether they were used to describe sexual or excretory functions.  That is obviously a difficult issue to decide, and one that has taken up much legal time and argument since the Pacifica decision.  (See our memo, here, discussing some of the lines drawn by the FCC).

Yet, despite the fact that the FCC never adopted a list of Seven Words that You Can Never Say On TV, many broadcasters believe that they have, and we probably have Mr. Carlin to thank for that belief.  Perhaps there will be Carlin retrospectives on broadcast stations in coming days - but they are unlikely to run during the middle of the day.
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Posted on June 4, 2007 by David Oxenford

Second Circuit Throws Out FCC Indecency Fines

Just as the FCC issued its order to implement the statutory increase in the amount of indecency fines, raising them to $325,000 per violation (see our comment, here), its enforcement of its indecency policy may be dead in its tracks.  A three judge panel of the US Court of Appeals for the Second Circuit, in a 2 to 1 decision released today, rejected the FCC's actions against a number of television networks for broadcast indecency.  The FCC actions were in the context of "fleeting utterances," i.e. the use of specific words that the FCC determined were indecent whenever they were used.  The Court rejected the FCC decision as being arbitrary and capricious, as the FCC decisions overturned without sufficient rational explanation years of FCC precedent that had had held that the isolated use of these words was not actionable.  The FCC actions were sent back to the FCC for further consideration to see if the Commission could craft a decision that provided a rational explanation for this departure from precedent.

However, this may prove to be impossible.  While the Court's decision was based on the FCC's failure to provide a rational basis for its departure from precedent, the Court also said that it was difficult to imagine how the FCC could constitutionally justify its actions.  The Court pointed to the inconsistent decisions of the FCC - fining stations for the use of the "F-word" and the "S-word" in isolated utterances during awards shows, and when used in the context of a program like PBS'  The Blues, but finding that the same words were not actionable when used in Saving Private Ryan or when used by a Survivor contestant interviewed on CBS' morning show.  In the Survivor case, the Court indicated particular confusion, as the Commission went out of its way to say that there was no blanket exclusion of news programming from the application of its indecency rules, but then it proceeded to find the softest of news - the Survivor cast-away interview - as being of sufficient importance to merit exclusion from any fine.  The Court felt that these decisions were so conflicting that a licensee would not be able to decide whether a use was permissible or not - and that such confusion, leaving so much arbitrary discretion in the hands of government decision-makers as to where to draw lines between the permissible and impermissible, would not withstand constitutional scrutiny.  It would have a chilling effect on free speech - and could be enforced in an arbitrary manner that could favor one point of view over another.

This reasoning, that the lines between the permissible and impermissible were impossible to predict, may well cause problems across the board in the FCC's enforcement of its indecency policies.  This decision determined that the prohibited words were, in and of themselves so "vulgar' and so suggestive of excretory and sexual functions that whenever they were used in any form, they were indecent.  But, as recognized above, there were exceptions where the FCC determined that the use, while perhaps indecent was, in context, permissible.  But because there was no clear line drawn , the government could be in a position to abuse its discretion when enforcing its policies, and perhaps make decisions on when to enforce the policy based on content of the programs, and not just the particular words being used.  These same criticisms could be leveled against much of the FCC's other enforcement in the indecency area.  Still to be decided are, for instance, the Janet Jackson case and the proceedings involving Without A Trace and Married By America, all cases where the allegedly indecent activity was not so blatant that it would be apparent to anyone (like the Seven Dirty Words routine where the Supreme Court approved limited indecency regulation).  In some of the pending cases, the FCC found innuendo and pixillated images to be indecent as they suggested the underlying sexual or excretory activity that was going on.  The fact that suggested activity alone could subject a broadcaster to a fine seems to be one of those areas where the line between the permissible and that which is prohibited cannot be discerned, and thus should cause concern in the courts.

The decision was interesting in one other respect - in that it suggested that one day soon broadcasting may not be subject to indecency regulation at all.  The Court looked at technological change, and recognized that broadcasting was not as all-pervasive as it once was, as there are so many other competitors for the attention of the public.  Plus advances such as the V-Chip, which allow parents to take control and block offensive content, are less-intrusive means of achieving the same ends that the FCC seeks, without treading on First Amendment concerns.

This decision is not final.  It could be reconsidered by the full Second Circuit Court of Appeals or appealed to the Supreme Court (as some supporters of the regulations have already urged).  Together with the other pending cases on indecency, we have not heard the last of this issue.  As attorneys from our firm have been involved in these cases, watch for more on these decisions.   
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Posted on June 1, 2007 by David Oxenford

The Cost of Talking Dirty Has Just Gone Up - Fines For Indecency Officially Raised By the FCC

It's been almost a year since President Bush signed legislation raising the fines for broadcast indecency to $325,000 per occurrence.  Even though the legislation was effective on June 15, 2006, the higher fines have not yet gone into effect as the FCC had never adopted rules to officially implement them - until today.  Today, the FCC issued an order adopting a rule to implement the statutory mandate - and the new higher fines will go into effect 30 days after this order is published in the Federal Register, which will presumably be quite soon.

There was no explanation for the Commission's delay in adopting the new rule.  As the change was mandated by statute, the adoption of the new rule did not require public notice and comment.  All the Commission needed to do was to put out the Order that was released today.  Perhaps the Commission was concerned about the pending Court cases to resolve whether their enforcement of the rules is constitutional (see our comment here).  In fact, in opposing the expedited consideration of one of the appeals of a Commission indecency fine, the Commission specifically made the point that there was no need to for prompt consideration as the chilling effect of the Commission policies was limited as the new fines had not yet gone in to effect.  But, for whatever reason, the Commission has finally decided to act, and the new fines will soon be effective.  Now we just need to watch for the Court decisions to see if the enforcement of those fines will be permitted.

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