Incidents not indecent
In a 2-to-1 vote, a panel of the Second Circuit Court of Appeals in New York rejected the FCC's ruling that Fox Television Networks' airing of profanities by Nicole Richie and Cher during the 2002 and 2003 Billboard Music Awards amounted to indecency. The court majority also questioned whether the policy on expletives issued in reaction to Bono's referring to an award as "f---ing brilliant" during NBC's telecast of the 2002 Golden Globe Awards was legally sustainable.
"For decades, broadcasters relied on the FCC's restrained approach to indecency regulation and its consistent rejection of arguments that isolated expletives were indecent," said Judges Rosemary S. Pooler and Peter W. Hall. "While the FCC is free to change its previously settled view on this issue, it must provide a reasoned basis for that change."
The decision stated: "The FCC's decision is devoid of any evidence that suggests a fleeting expletive is harmful, let alone established that this harm is serious enough to warrant government regulation. The order provides no reasoned analysis of the purported 'problem' it is seeking to address from which this court can conclude such regulation of speech is reasonable."
Disagreement over who is 'divorced'
"I completely disagree with the court's ruling and am disappointed for American families," Mr. Martin said. "The court even says the commission is 'divorced from reality.' It is the New York court, not the commission, that is divorced from reality in concluding that the word 'f---' does not invoke a sexual connotation."
He added, "If ever there was an appropriate time for commission action, this was it. If we can't restrict the use of the words 'f---' and 'shit' during prime time, Hollywood will be able to say anything they want, whenever they want."
An FCC spokesman said today the agency is reviewing the decision.
The appellate decision is the first from two cases challenging the FCC. In a second case CBS is challenging fines from the Janet Jackson Super Bowl "nipplegate" incident.