Appeals Court Strikes Down FCC Policy on Indecency

4A's Says Ruling Makes Free Speech Protections for Advertisers 'All the More Secure'

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NEW YORK (AdAge.com) -- In a victory for broadcast networks and the advertising community -- however temporary it might be -- a federal appeals court on Tuesday struck down the Federal Communications Commission enforcement policy on indecency, saying "the FCC's policy violates the First Amendment because it is unconstitutionally vague, creating a chilling effect that goes far beyond the fleeting expletives at issue here."

The ruling, issued by the U.S. Court of Appeals for the Second Circuit in New York, will likely send the FCC back to the Supreme Court to appeal. In a statement, FCC chairman Julius Genachowski said, "We're reviewing the court's decision in light of our commitment to protect children, empower parents and uphold the First Amendment."

In the meantime, there is happiness among the networks and advertisers. "Any day a court reinforces the power of the first amendment and the core American commitment to free speech is a good day for the advertising community," said Dick O' Brien, exec VP-government relations for the 4A's. "The court's upholding of First Amendment protections for broadcasters just makes those same protections for advertisers all the more secure."

Andrew Jay Schwartzman, senior VP-policy director for the Washington, D.C.-based Media Access Project, said the ruling upheld the organization's belief that the FCC's policy did not give adequate guidance for conduct regarding the use of expletives.

"The score for today's game is First Amendment one, censorship zero," Mr. Schwartzman said in a statement.

"Media Access Project entered this case on behalf of writers, producers, directors and musicians because the FCC's indecency rules are irredeemably vague and interfere with the creative process. Today's decision vindicates that argument. The next stop is the Supreme Court, and we're confident that the justices will affirm this decision."

The FCC implemented its current policy and enforcement penalties in 2004 -- in which it could fine stations up to $325,000 for each instance of indecent speech that was not bleeped out -- following what it cited as a string of examples of "fleeting expletives" on live TV, including:

  • Singer Cher saying "People have been telling me I'm on the way out every year, right? So, fuck 'em," at the 2002 Billboard Music Awards.
  • U2 frontman Bono saying "This is really, really fucking brilliant," after receiving an award at the 2003 Golden Globes.
  • And socialite/reality TV star Nicole Ritchie saying, "Have you ever tried to get cow shit out of a Prada purse? It's not so fucking simple," while presenting an award at the 2003 Billboard Music Awards.
  • News Corp.'s Fox, joined by the other major broadcast networks, filed suit in 2006 to challenge the FCC ruling. The Second Circuit court agreed that the policy was "arbitrary" in 2007, but the Supreme Court in 2009 ruled in 2009 that the FCC has the authority to enforce the policy -- but the justices did not rule on whether the FCC policy violated the First Amendment, instead returning the case to the Second Circuit for a decision.

    In Tuesday's ruling, the Second Circuit found that "under the current policy, broadcasters must choose between not airing or censoring controversial programs and risking massive fines or possibly even loss of their licenses, and it is not surprising which option they choose. Indeed there is ample evidence in the record that the FCC's indecency policy has chilled protected speech."

    Tim Winter, president of the Los Angeles-based Parents Television Council, blasted the ruling. "Let's be clear about what has happened here today: A three-judge panel in New York once again has authorized the broadcast networks' unbridled use of the 'f-word' at any time of the day, even in front of children," Mr. Winter said in a statement. "The Court substituted its own opinion for that of the Supreme Court, the Congress of the United States, and the overwhelming majority of the American people. For parents and families around the country, this ruling is nothing less than a slap in their face. FCC Chairman Julius Genachowski and the Obama administration must immediately appeal."

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