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.

***

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.

Comments

[ari]

This is just one example of why C-SPAN should archive all their programs.

It would be nice to be able to watch the oral arguments now.

[Aaron]

And here's my writeup that's appearing in tomorrow's biz section with the unusual local angle:

A federal court Monday may have put an end to the government's crusade to stop profanity on TV.

By a 2-1 decision, the U.S. Court of Appeals, Second Circuit, ruled that the Federal Communications Commission had enacted a new standard for indecency following the 2004 Janet Jackson Super Bowl incident that was “arbitrary and capricious.”

One of the petitioners listed in the decision released Monday was KMBC-TV, the Kansas City ABC affiliate owned by Hearst-Argyle Television. However, because the FCC reversed its decision against KMBC last November, just before Fox v. FCC was to be argued before the appeals court in New York City, KMBC was not affected by the ruling.

Since 1978, the FCC has had the power to ticket TV and radio stations if viewers or listeners complained about indecent material that they aired. In 2004, the FCC widened its purview to include “fleeting expletives” -- unscripted profanity usually uttered at live televised events.

At issue were two broadcasts of the “Billboard Music Awards” on Fox, in which the same four-letter word was spoken by the singer Cher and the celebrity Nicole Richie. However, a sizable part of the court's 53-page decision was spent analyzing the FCC's reversal of its decision on a 2002 broadcast of the Golden Globe Awards on NBC, in which an expletive by the rock singer Bono was originally found to be not indecent. Under new chairman Kevin Martin, the FCC reversed that decision, sending shock waves through an industry where the rules had previously been clear-cut.

The court found that “the FCC has failed to articulate a reasoned basis for this change in policy.” Though its ruling only applies to the “Billboard” telecasts, industry observers agreed Monday that the sharply worded decision would likely affect “Golden Globes” and other fleeting-expletive cases.

Hearst, CBS and ABC had joined Fox's case because of other rulings against their broadcasts. Several of these were reversed by the FCC prior to oral arguments (which were televised, unbleeped, on C-SPAN).

In KMBC's case, an episode of “NYPD Blue” that it aired had been cited for profanity. It was later discovered that the viewer who filed the complaint lived on the East Coast, where the show airs after 10 p.m. -- the cutoff time known as “safe harbor,” when more explicit TV programming may air.

[Richard]

I am so.... uh.... uh.... saddened by this decision that I could.... uh..... throw a fit.

[John]

I don't think this scores one for the First Amendment. The first amendment was enacted to protect the right of the people to speak or write their opinions freely and without fear of punishment when their opinions were ones that criticized the government. It was not an open invitation to use profanity in public. Laws against profanity existed in 1789, when the Constitution was enacted. These laws did not and still do not violate the right of free speech, because you still have the right to speak your opinion against the government without fear of prosecution. The first amendment does not grant the right to use profanity over the public airwaves and on TV entertainment shows. This was not the purpose of the first amendment. Profanity used in this way is an abuse of the first amendment. The first amendment applies to speaking out and protesting the US government without fear of being arrested. It does not grant the right to use profanity or restrict the enactment of laws against profanity.