Finally! Appeals court tosses out FCC's profanity case against Fox
Remember that effing brilliant (as Bono might say) C-SPAN telecast from late last year, when Fox Television challenged an FCC indecency ruling before three circuit court judges in New York?
Amazingly enough, there is a happy ending to the story. The court today ruled in Fox's favor and threw out the FCC's ruling that Fox's live airings of the 2002 and 2003 Billboard Music Awards were indecent because Cher and then Nicole Richie, that little copycat, dropped F-bombs on them. (Download the decision here.)
Broadcasting & Cable has the full report and instant analysis of the 2-1 decision, which B&C's John Eggerton says "essentially invalidates the Golden Globes indecency finding against the fleeting profanity by Bono" in 2002. You'll recall that the NBC live broadcast originally avoided FCC penalties, only to have that decision reversed after the Janet Jackson Super Bowl incident in 2004.
If you've got a few minutes, go through that ruling. It contains a nice concise history of the FCC's meddlings since the infamous 1978 Pacifica ruling got it into the nanny business. Since 2004 — that is, since Kevin Martin took over the FCC — the agency has begun cracking down much more harshly on profanity than in the 26 years prior to Martin. And yet, the court finds the that FCC has offered "no reasonable explanation" for its change in course. And so, the new, "arbitrary and capricious" FCC rulings go bye-bye.
The court stopped short of saying that Kevin Martin has turned the FCC into a government haven for crackpots wishing to impose their crabbed views of moralistic behavior on the general public. On the other hand, it didn't need to.
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And this just in...
Andrew Jay Schwartzman, President and CEO of the Media Access Project expressed pleasure at today’s U.S. Court of Appeals decision invalidating the FCC’s enforcement policies for “indecent” speech:
“Score one for the First Amendment. It’s a shame that citizens and broadcasters had to seek protection from the courts, but it is very reassuring to know that one branch of the government can rise above demagogy.”
Schwartzman and other Media Access Project (MAP) attorneys represented the Center for Creative Voices in Media (CCV) as intervenors in the U.S. Court of Appeals for the Second Circuit. CCV’s members include many members of the creative community, and its brief to the court stressed the chilling effect of the FCC’s action on writers, directors and other artists.
In today’s decision, Fox Television Stations v. FCC, Judge Rosemary S. Pooler invalidated the FCC’s March 2006 action attempting to revise and broaden the scope of the FCC’s enforcement of the broadcast of indecent speech between the hours of 6am and 10pm. Schwartzman pointed out that because the Court’s action was based on a narrow reading of the law, it is unlikely that the government will seek Supreme Court review, or that the Supreme Court would agree to hear the case if it were asked to do so.
