Feeds

US appeals court smacks down FCC obscenity rule

F-bombs away!

High performance access to file storage

In that order, the FCC again declined to issue a fine for Cher's dirty mouth, for the original reason that the statement occurred before the rule change. The FCC also passed on the opportunity to fine Fox for Nicole Richie's comments, even though it claimed that the statement was actionable under either the pre- or post-Golden Globes rule.

Given the lack of fines, the most important feature of the FCC's ruling from a legal standpoint was the agency's denial of Fox's argument that fleeting expletives should never receive sanctions. This cemented the Golden Globes rule and gave the 2nd Circuit fodder for some legal benchslapping.

The court found that the rule change was arbitrary and capricious since the FCC had offered no reasoned analysis explaining why the word "fuck" should always be indecent. The court even pointed to famous remarks by President Bush and Vice President Cheney as undermining the FCC's assertion that the words "fuck" and "shit" always referred to sexual or excretory functions.

[President Bush, you will recall, told Prime Minister Blair that the UN needed to "get Syria to get Hezbollah to stop doing this shit," and VP Cheney told a US Senator to "fuck yourself."]

Even Bono's notorious dirty word that brought about the new rules was only used to emphasize his statement, according to the court, and had no sexual reference at all.

In the face of this highly visible evidence of the commonplace non-sexual and non-excretory use of the swears in question, the court ruled that the agency had no good reason to change the rules in mid-stream after networks had operated under the old rule for years.

The court sent the issue back to the agency to wrap things up, but warned the FCC that, even if it were to come up with a more reasoned analysis for the rule, the new regulation would most likely be banned by the Constitution. The availability of less restrictive alternatives, such as the V-chip, would probably undermine constitutional support for the FCC's oversight of indecency over the airwaves, according to the 2nd Circuit.

This will almost certainly inspire the FCC to issue a more detailed reason for the new rule, which will in turn inspire another appeal by the networks to the 2nd Circuit, who will then slap the rule down on constitutional grounds, opening up an avenue for the FCC to make an appeal to the Supreme Court. Agencies don't like being told that the Constitution limits their authority, so the FCC will almost certainly fly in the face of the 2nd Circuit's warning in order to bring the matter before the Supremes' attention.

If all this does indeed go down, and the Supreme Court does decide to look at the case, things become pretty interesting. With a conservative court, priggishness might prevail and a ruling could go in favor of the FCC. Many of the justices on the Court have shown themselves to be defenders of the First Amendment, however, so they could also agree with the 2nd Circuit. In the end, it could go either way.

But just remember: no matter what happens with the indecent language rule, flash a breast during the Super Bowl and all hell will break loose. Because of that wonderful feature of American prudery, it's a safe bet that the networks will still implement time-delay technologies, and use them for any highly-watched live broadcast.

It might also be a good idea to cut down on the amount of booze at awards shows. Just a thought. ®

High performance access to file storage

More from The Register

next story
Android engineer: We DIDN'T copy Apple OR follow Samsung's orders
Veep testifies for Samsung during Apple patent trial
MtGox chief Karpelès refuses to come to US for g-men's grilling
Bitcoin baron says he needs another lawyer for FinCEN chat
Did a date calculation bug just cost hard-up Co-op Bank £110m?
And just when Brit banking org needs £400m to stay afloat
One year on: diplomatic fail as Chinese APT gangs get back to work
Mandiant says past 12 months shows Beijing won't call off its hackers
German space centre endures cyber attack
Chinese code retrieved but NSA hack not ruled out
EFF: Feds plan to put 52 MILLION FACES into recognition database
System would identify faces as part of biometrics collection
Big Content goes after Kim Dotcom
Six studios sling sueballs at dead download destination
Ex-Tony Blair adviser is new top boss at UK spy-hive GCHQ
Robert Hannigan to replace Sir Iain Lobban in the autumn
Alphadex fires back at British Gas with overcharging allegation
Brit colo outfit says it paid for 347KVA, has been charged for 1940KVA
Jack the RIPA: Blighty cops ignore law, retain innocents' comms data
Prime minister: Nothing to see here, go about your business
prev story

Whitepapers

Securing web applications made simple and scalable
In this whitepaper learn how automated security testing can provide a simple and scalable way to protect your web applications.
Five 3D headsets to be won!
We were so impressed by the Durovis Dive headset we’ve asked the company to give some away to Reg readers.
HP ArcSight ESM solution helps Finansbank
Based on their experience using HP ArcSight Enterprise Security Manager for IT security operations, Finansbank moved to HP ArcSight ESM for fraud management.
The benefits of software based PBX
Why you should break free from your proprietary PBX and how to leverage your existing server hardware.
Mobile application security study
Download this report to see the alarming realities regarding the sheer number of applications vulnerable to attack, as well as the most common and easily addressable vulnerability errors.