seven words that you can never say on tv

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The FCC’s indecency rules have, in recent months, twice been declared unconstitutional by the US Court of Appeals for the Second Circuit – essentially finding that the FCC’s policies imposed unconstitutional restrictions on speech as they did not give broadcasters any way of determining what was permitted and what was prohibited.  After seeking several extensions of time to determine whether to seek Supreme Court review of the Court of Appeals decisions, the FCC today released its Petition for Certiorari to the high court.  The Supreme Court need not hear this request for review though, given its previous decision on these rules (which we wrote about here), and the high publicity and public interest in this subject, the case could quite well end up on the schedule.

This appeal deals with two cases.  First, it seeks review of the decision of the Court of Appeals throwing out the fleeting expletive admonitions given to Fox network stations for the broadcast of two Billboard Music Award shows that contained expletives, one by Cher and one by Nicole Richie.  Following the precedent set by the Golden Globes case (where Bono used the "F word"), the Commission held that the use of one of these single words, even if not used in a sexual context, were inherently indecent.  The second case covered by the Supreme Court petition was for the depiction of bare female buttocks in the program NYPD Blue – resulting in $27,500 fines on a number of ABC stations.  This decision was also overturned by the Court of Appeals.Continue Reading FCC Decides to Appeal Indency Cases to Supreme Court

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.Continue Reading George Carlin – Writing the Indeceny Rules the FCC Never Did