FCC Appeals Adverse Ruling in Censorship Case

The Federal Communications Commission (FCC) filed an appeal with the Court of Appeals for the Second Circuit on Thursday, August 26, asking it to reconsider an adverse decision handed down on July 13th of this year.  In Fox Television Stations Inc. v. FCC, the 2nd Circuit held that the indecency policy of the FCC was unconstitutionally vague and it created a chilling effect on normal non-offensive broadcasts in general.  Although the FCC has not yet petitioned the Supreme Court for certiorari many legal experts anticipate that it will do so if it loses the pending appeal before the 2nd Circuit.

The 2nd Circuit’s ruling in Fox Television StationsInc. v. FCC at least partially challenged the strength of the landmark case FCC v. Pacifica Foundation, 438 U.S. 726 (1978), where in 1978 the Supreme Court supported the FCC’s contextual approach to censoring profanity and found FCC regulations compliant with the demands of the First Amendment.  In Pacifica the Supreme Court noted that radio and television are a special form of speech that deserves very limited First Amendment protection because they are a “uniquely pervasive presence in the lives of all Americans” and that they are very accessible to young and impressionable children.

In 1978 the Supreme Court supported the FCC’s efforts to censor radio and broadcast television.  Since then, most broadcasters of live television broadcast the signal with a slight time delay to allow the networks to “bleep out” obscenity and swear words.  Since 1978 FCC censorship regulations have become more and more strict and now impose sanctions for any language that is profane or obscene, even words that are not traditional swear words.  Moreover, in 2004 the FCC stated for the first time that a single, nonliteral use of an expletive (a “fleeting expletive”) is grounds for sanction under FCC regulations (19 F.C.C. Rcd. 4975, at ¶ 8 – 12).  Much of the FCC’s reform in the past decade was a result of the infamous exposure of Janet Jackson’s breast on live television during the 2004 Super Bowl (“Nipplegate”).  That violation of FCC policy resulted in a $550,000 fine assessed against the broadcasters of the Super Bowl (later overturned by the 3rd Circuit).  Various challenges to FCC regulations between 1978 and 2008 failed to gain traction until 2009, when Fox Television Studios and other petitioners brought suit against the FCC preemptively to prevent it from assessing fines against them.

The present case, Fox Television Stations, already went to the Supreme Court last year when SCOTUS overturned the 2nd Circuit’s holding that the FCC’s policy was “arbitrary and capricious” under the Administrative Procedure Act (APA) and struck it down.  The Supreme Court reversed and found the policy compliant with the APA’s arbitrary and capricious standard of review.  The Supreme Court remanded the case to the 2nd Circuit to decide the separate Constitutional question of whether the policy violates the First Amendment.

On remand the 2nd Circuit found the FCC’s indecency policy unconstitutionally vague.  The 2nd Circuit’s decision in Fox Television Studios is a significant departure from the approval voiced by the Supreme Court in 1978.  The 2nd Circuit noted that the world of communications has changed remarkably since 1978 with the explosion of the internet, social networking, cellular phones, and a plethora of other forms of communication.  Accordingly, a very specific and well-tailored policy is mandated, according to the 2nd Circuit.  Although the FCC had limited its censorship to seven specific swear words in the years following the Pacifica decision, in 1987 it changed its policy to a more flexible one that imposes fines on broadcasters of “obscene, indecent, or profane language”.  It is this more flexible system that the 2nd Circuit found unconstitutionally vague because it does not “give the person of ordinary intelligence a reasonable opportunity to know what is prohibited.”

Simply put, the 2nd Circuit wants the FCC to spell out exactly what is profane or obscene and why it must be censored.  The FCC’s response to the Fox Television Studios decision was to appeal the holding and ask for reconsideration rather than draft new regulations.  Obviously the FCC is going to give up their authority granted by the Pacifica decision without a fight.  This case will likely go to the Supreme Court where it will ultimately decide what limits the First Amendment places on censorship, broadcast media, and obscenity.

Eagleionline Question(s) of the Day: Do you think the FCC should have the power to censor any broadcast media that it finds “obscene, indecent, or profane?”  If so, is such a power constitutional?