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FCC's ban on 'fleeting expletives' ruled unconstitutional

TV's over-zealous profanity police rebuked by court

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US television regulator the Federal Communications Commission (FCC) may not have the right to police American airwaves, a court has ruled. The ruling is a blow to a George W Bush-led clampdown on on-air swearing.

The US Court of Appeals for the Second Circuit in New York has said that an indecency finding in 2006 against television network Fox Broadcasting over two separate live swearing incidents went too far. It also questioned the basis of a 2004 FCC policy revision targeting "fleeting" swearing.

The FCC's policing of "indecent" speech stems from section 1464 of the United States Code which provides that: "[w]hoever utters any obscene, indecent, or profane language by means of radio communication shall be fined under this title or imprisoned not more than two years, or both."

The FCC's authority to regulate the broadcast medium is limited by the Communications Act, which prohibits the FCC from engaging in censorship, but it has authority to impose penalties for violations.

The commission has long applied its own definition of indecent speech: "Indecent speech is language that describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities and organs. Such indecent speech is actionable when broadcast at times of the day when there is a reasonable risk that children may be in the audience."

However, it also had a policy that a "fleeting expletive" would not be actionable. Fleeting swearing is the one-off, brief use of swearing, usually in a live broadcast.

That policy changed in 2004, after a speech by Bono at the Golden Globe Awards in 2002. Accepting an award, the U2 frontman said: "This is really, really, fucking brilliant. Really, really great." The expletive was not repeated, but the FCC took the view that it violated the rules on indecency.

The FCC's policy change on swearing is seen in the US as a reflection of President Bush's views and the Court attacked its constitutional basis.

The Court said that the FCC's "new policy sanctioning 'fleeting expletives' is arbitrary and capricious...we are doubtful that by merely proffering a reasoned analysis for its new approach to indecency and profanity, the FCC can adequately respond to the constitutional and statutory challenges raised by the networks".

Fox was found to be in breach of the revised FCC rule in two incidents, one involving singer Cher, the other involving socialite turned TV personality Nicole Ritchie. Both incidents took place in live, music-related programmes.

No penalty followed because the incidents predated the 2004 rule change. In her acceptance speech at the 2002 Billboard Music Awards, Cher had said: "People have been telling me I'm on the way out every year, right? So fuck 'em." When presenting the 2003 Billboard Music Awards, Richie had said: "Have you ever tried to get cow shit out of a Prada purse? It's not so fucking simple."

Fox, backed by other networks, mounted a legal challenge to the FCC's decision, claiming that the FCC had breached the US Constitution's first amendment, which guarantees the right to free speech.

The court said that it agreed that the action was unconstitutional, but its ruling was restricted to the specific FCC rule change, saying that that banning of "fleeting" swearing was against the law.

The FCC is considering a Supreme Court appeal, and the constitutional element of the case makes acceptance of it by the Supreme Court more likely than it would be without any constitutional claim.

"I'm disappointed in the court's ruling," FCC chairman Kevin Martin told the Washington Post. "I think the commission had done the right thing in trying to protect families from that kind of language, and I think it's unfortunate that the court in New York has said that this kind of language is appropriate on TV."

The FCC has been clamping down on swearing on television more vigorously than previously in the past four years. Last year it requested that Congress increase the maximum fines it can levy for indecency more than tenfold. Congress acceded to the request to increase the maximum fine from $32,000 to $325,000.

The Parents Television Council said that the ruling "cleared the way for networks to use the f-word and s-word in front of children at any time of the day".

The Court addressed that claim in its ruling, though, saying that this had not been the case before the FCC changed its approach.

Copyright © 2007, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.

Related links

The UK's Broadcasting Code
The UK's rules on offensive content in broadcasts

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