Judges raise doubts about indecency policy

In a case that could have a profound effect on the federal government’s ability to police the airwaves, judges pointedly questioned the Federal Communications Commission’s motives, means and reasoning behind two indecency violations the agency issued earlier this year.

One judge even reprimanded the FCC for not having conducted any studies of the effects of fleeting profanity on children — one of the agency’s main justifications for issuing such violations — and also advised parents to remove televisions from children’s bedrooms.

FCC attorney Eric Miller argued that the only issues before the U.S. 2nd Circuit Court of Appeals in Manhattan on Wednesday involved the two specific indecency violations — not larger questions about the soundness of FCC indecency policy or authority, as suggested by the attorney representing Fox, which drew the violations.

While the three-judge panel expressed hesitation about ultimately ruling on constitutional issues that are involved but not the focus of the case, each judge raised serious questions about whether the FCC’s current indecency policy is constitutional.

Case revolves around a quartet of indecency violations the FCC issued in March — two against Fox for profanities uttered on the 2002 and 2003 live broadcasts of a music awards show, one against CBS for a profanity on “The Early Show” and one against ABC for profanity on an episode of “NYPD Blue.”

Before the networks could get the decisions into court for legal challenge, the FCC reviewed them and rescinded the violations against CBS and ABC. The profanity on “The Early Show” — someone said “bullshitter” during a live interview — was declared not indecent because it had been made during what the FCC called a news segment.

The complaint against “NYPD Blue” was found to have been lodged by someone who had not seen the show.

The FCC let stand the two violations against Fox. In the first instance, Cher said “fuck ’em” in a 2002 broadcast of the Billboard Music Awards; in the second, at the same kudocast a year later, reality TV personality Nicole Richie said, “Have you ever tried to get cow shit out of a Prada purse? It’s not so fucking simple.”

Miller repeatedly labeled the profanities “gratuitous,” but Judge Peter Hall quickly interrupted, asking whether C-SPAN’s live coverage of the oral arguments would be liable for indecency because the very words were being used in court. Miller said no because that would be considered news.

Similarly, any network news rebroadcast of C-SPAN’s coverage would not be liable, Miller said.

Judge Rosemary Pooler asked whether “the Nicole Richies of the world” shouldn’t be afforded similar protections. She also asked how it’s possible that “The Early Show” was exempted because the FCC had declared it to be a news segment when in fact the segment focused on a former contestant from a reality TV show.

“Under that definition, anything could be news,” Pooler said.

Pooler, who posed the sharpest questions, then wanted to know whether the FCC would ensure that all children would be sent away from TV sets that night before news reports came on about the court case. Later she said, “Did the FCC say children were harmed by the broadcast of these words? Maybe a child who lives in a bubble, but not children who live in the real world.”

She also chided the agency for not having studied the effects on children from exposure to profanity.

Fox’s attorney, Carter Phillips, argued that in finding the broadcasts indecent, the FCC had abandoned “30 years of unbroken precedent” of not citing broadcasters for fleeting expletives in a live setting. Phillips said the agency had failed to provide “reasoned analysis” for its decisions and added that he doubted it even could.

“But what if there could be a reasoned analysis,” asked Pooler. “Why not give the FCC a chance to do it?”

Phillips said that the last Supreme Court decision on indecency — in the Pacifica case in the late 1970s — specified that fleeting instances of profanity on live shows could not be liable unless they were, in context, indecent.

For 25 years, the FCC observed that distinction until its reconsidered verdict on NBC’s broadcast of the 2003 Golden Globe Awards, during which rocker Bono said, “This is really, really fucking brilliant.”

Initially the FCC said, per Pacifica, the utterance did not rise to indecency. But after political pressure from Congress, the FCC said that the so-called F-word was indecent in any context. With its decisions against Fox, the FCC added “shit” to the list.

NBC has appealed that second decision on the Golden Globes, but the FCC has not acted on it. Phillips argued that, in finding Fox’s broadcasts indecent based on the Golden Globe decision even though the Fox broadcasts happened before the Golden Globe incident, the commission was turning into a “terroristic” regime indifferent to the First Amendment.

Pooler wondered whether the FCC was ever going to get around to addressing NBC’s appeal on Golden Globes, which has been “moldering” at the agency for the last two years, she said.

Afterward, Jonathan Rintels, exec director for the Center for Creative Voices in Media, agreed that it was not possible to overstate the significance of the court challenge “because the court said it’s about more than these two decisions. It’s about the whole change in FCC enforcement policy.”

Veteran media attorney John Crigler said, “It’s about where the limits of regulatory authority are and where the Constitution begins.”

Former network exec and longtime media lawyer Stephen Weiswasser said that, win or lose, broadcasters have engaged a major battle. “If broadcasters win,” he said, “the court could strike down the entire regulatory thrust of the FCC.” If the FCC wins, broadcasters are almost certain to appeal to the Supreme Court — which would likely take the case, according to experts.

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