As we wrote earlier this week, the US Court of Appeals for the Second Circuit on Tuesday struck down part of the FCC’s indecency rules, finding that the rules were too vague and had an undue chilling effect on broadcasters. DWT’s First Amendment experts have now taken a closer look at the Court’s decision
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. Continue Reading Court of Appeals Strikes Down FCC Indecency Rules
In the past several weeks, broadcast indecency has been back in the news – seemingly almost on a daily basis. First, there was the story about Bob McDonnell, the Republican candidate for Virginia governor who, seemingly inadvertently, dropped the f-bomb, perhaps as a result of tripping over his tongue during a news interview on a news radio station in Washington. Then came the extensive coverage of New York City TV newscaster Ernie Anastos who, during on-air banter with the weather man, also let the f-word fly – in what was apparently not a slip of the tongue, but perhaps a slip of the brain, where the anchor must have thought that he was somewhere other than on the set of a live TV newscast. And then this past weekend, an actor on Saturday Night Live let the word fly during the late night program. These incidents come on the heels of the FCC releasing its statistics on complaints that it had received in the first quarter of this year (reflecting many indecency complaints in the last month), while the Commission has asked the Court of Appeals for the opportunity to reexamine its decision in the Janet Jackson case to determine if any violation of the indecency rules was "willful." What does all of this activity mean?
The recent well-publicized on-air slip-ups demonstrate how the fleeting expletive, which have formed the basis of a number of recent FCC cases, including the Supreme Court decision upholding the FCC’s authority to decide to change its prior holdings and issue fines for such utterances (but leaving open the constitutional questions as to whether the FCC regulation is consistent with the First Amendment), can no longer hide from public examination. In the past, fleeting expletives were just that – fleeting. If there was an on-air slip up, people in the audience may have done a double take, trying to decide if they really heard what they thought that they heard. Often, there would be a shrug of the shoulders and the event would pass. Not so in today’s electronic world. Now, when a politician or a TV announcer slips up and let’s one of those you-can’t-say-that-on-TV words slip, the listening public quite often has the opportunity to check out YouTube or some other website to confirm what they did or didn’t hear. As a recent press article about the NY anchor observes, these events become viral. A similar observation was made today about the SNL skit. And, when they become viral, the FCC often hears about it in the form of a complaint. As the FCC does not usually monitor stations themselves looking for indecency, but instead only takes action where a member of the public complains, the viral preservation of these incidents have no doubt resulted in far more FCC complaints that would have otherwise occurred – certainly more than have occurred in the past.Continue Reading Broadcast Indecency Can’t Hide – A Candidate for Governor, a TV Newscaster, Saturday Night Live and the Clothing Malfunction