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US appeals court smacks down FCC obscenity rule

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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. ®

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