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.