Second Circuit: The FCC indecency policy is unconstitutionally vague

The Second Circuit held on July 13 that the Federal Communications Commission‘s indecency policy “violates the First Amendment because it is unconstitutionally vague, creating a chilling effect that goes far beyond the fleeting expletives at issue here.”

In Fox Television Stations, Inc. v. FCC, 489 F.3d 444, (2d Cir. 2007), the Second Circuit had found that the Federal Communication Commission’s (“FCC”) policy banning fleeting expletive was arbitrary and capricious on three grounds under the Administrative Procedure Act (“APA”), 5 U.S.C. § 706(2)(A). First, the FCC had failed to explain why it had not previously banned such expletives as harmful. Second, such policy would require it to ban all broadcast of expletives, and by failing to do so, the FCC had undermined the coherence of its rationale. Thirdly, the Second Circuit was not convinced by the FCC argument that an exemption for fleeting expletives would then lead to a increased use of one-at-a-time expletives.

The Supreme Court did not find these arguments persuasive and reversed. Fox Television Stations, Inc. v. FCC, 129 S.Ct. 1800 (2009). A federal agency has the right, after all, to change its opinion: “the fact that an agency had a prior stance does not alone prevent it from changing its view or create a higher hurdle for doing so.” The Supreme Court noted that the FCC had always drawn distinctions between the offensiveness of some words, particularly taking their context into account. The Supreme Court sided with the FCC’s argument that a complete immunity for fleeting expletives would lead to their increase. The Supreme Court reversed and remanded for consideration of petitioner’s constitutional arguments.

The petition for review came on remand before the Second Circuit, and, on July 13, 2010, it vacated the FCC indecency policy because it is unconstitutionally vague.

What is the FCC’s indecency policy?

Section 1464 of Title 18 of United States Code 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.”

In 2001, the FCC published an indecency policy, the Industry Guidance, “to provide guidance to the broadcast industry regarding our case law interpreting 18 U.S.C. § 1464 and our enforcement policies with respect to broadcast indecency.” Material is indecent if it “describe[s] or depict[s] sexual or excretory organs or activities, and if the broadcast is “patently offensive as measured by contemporary community standards for the broadcast medium.”

The FCC also explained that it considered three factors to determine whether a broadcast is patently offensive:

(1) “the explicitness or graphic nature of the description or depiction;

(2) whether the material dwells on or repeats at length” the description or depiction; and

(3) whether the material appears to pander or is used to titillate, or whether the materials appears to have been presented for its shock value.”

On the difficulty to clean a Prada bag when soiled by cow excrement: fleeting expletives and the FCC

Nicole Ritchie explained during the 2003 Billboard Music Awards, broadcasted on Fox, that it is difficult to clean a Prada bag if soiled by cow excrement, but did so in somewhat different terms, with the help of both the F and the S words. A year earlier, Cher had used a solo expletive to comment on her receiving a Billboard Music Award. The FCC found Fox liable in both cases.

In 2004, the FCC declared for the first time, in the so-called Golden Globes Order, that an expletive use of the F-word and the S-word could be actionably indecent, even if the word is used only once, In re Complaints Against Various Broadcast Licensees Regarding Their Airing of the “Golden Globe Awards” Program, 19 FCC Rcd. 4975, 4976, n. 4 (2004.

Before this Order, an isolated or fleeting use of such words had not been considered indecent, and the FCC declared that “any such interpretation is no longer good law.” 19 FCC Rcd., at 4980. After it issued the Golden Globes Order, the FCC also started to fine broadcast licensees for indecency violations. It imposed $8 million in fines in 2004.

The 1978 Pacifica case

Indecent speech is protected by the First Amendment, unless it is obscene: “Where obscenity is not involved, …the fact that protected speech may be offensive to some does not justify its suppression.” Reno v. ACLU, 521 U.S. 844, 874-75 (1997).

In the Seventies, a father had complained to the FCC that George Carlin’s “Filthy Words” monologue, had been broadcast it in the afternoon and that he heard it while driving with his young son. In a declaratory order, Pacifica Foundation, 56 F.C.C. 2d 94, 98, the FCC defined indecent speech as “language that describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities or organs, at times of the day when there is a reasonable risk that children may be in the audience.” 56 F.C.C. 2d, at 98. The FCC granted the father’s complaint, and held that Pacifica, the broadcaster, “could have been the subject of administrative sanctions.” 56 F.C.C. 2d 94,99.

A Court of Appeals reversed, and the Supreme Court held in FCC v. Pacifica Found., 438 U.S. 726 (1978), that indecent speech could be banned. However, the holding was very narrow.

Indecent speech could be banned because of two reasons, Pacifica, at 748-749, which the Second Circuit describes in its July 2010 ruling as “the twin pillars of pervasiveness and accessibility to children.”(our emphasis).

(1) the “uniquely pervasive presence” of the medium and

(2) the fact that the broadcasted program featuring such language is “uniquely accessible to children.”

The Supreme Court did not specify what level of scrutiny must be applied on broadcast speech.

Section 326 of the Federal Communication Act of 1934 prohibits censorship by the FCC, as it clearly states that the FCC has no power of censorship over radio communications, and that it cannot interfere with the right of free speech by means of radio communication. However, in Pacifica, the Supreme Court held that section 326 does not limit the FCC’s authority to sanction licensees engaging in obscene, indecent, or profane broadcasting. The FCC has the power to deprive a broadcaster of his license if the FCC decides that it would serve the public interest, convenience and necessity.

The FCC from then on interpreted Pacifica as permitting it to sanction indecent speech, whereas the broadcasters interpreted it, because of the narrowness of the holding, as setting limits to the power of the FCC by defining indecent speech only as speech having “shock value.”

Towards an overruling of Pacifica?

The Second Circuit was careful to state that they are bound by Supreme Court precedent, even though the world has changed since Pacifica: “The Supreme Court may decide in due course to overrule Pacifica and subject speech restrictions in the broadcast context to strict scrutiny.”

One of the arguments made by the Second Circuit in its July 2010 opinion is the fact that the media landscape has changed significantly since Pacifica. The Internet did not exist then, with its myriad of sites claiming our attention (the Second Circuit gives as examples Facebook, Twitter and Youtube). Cable television was “still in its infancy.” The Second Circuit, quoting Pacifica, argues that broadcast television no longer has that “uniquely pervasive presence in the lives of all Americans.”
Indeed, the “twin pillars” of Pacifica are shaking down.

First twin pillar broken: pervasiveness

Broadcast television is longer pervasive. It is just one of the many choices offered to us. The Second Circuit notes that 87% of households now subscribe to a cable or a satellite service, and that remote controls allow us to shift swiftly through channels. The Internet claims an important part of our attention as well.

Second twin pillar broken: accessibility to children

The Second Circuit also argued that, “as the FCC itself acknowledges, “[c]hildren today live in a media environment that is dramatically different from the one in which their parents and grandparents grew up decades ago.”” In the Matter of Empowering Parents and Protecting Children in an Evolving Media Landscape, 24 F.C.C. Rcd. 13171, at ¶ 11 (2009), for example, parents now have the power, thanks to the V-chip, to monitor which programs their children are watching on television.

The Second Circuit cited United States v. Playboy Entm't Group, 529 U.S. 803, 815(2000): “…targeted blocking enables the Government to support parental authority without affecting the First Amendment interests of speakers and willing listeners – listeners for whom, if the speech is unpopular or indecent, the privacy of their own homes may be the optimal place of receipt.

The FCC indecency policy is unconstitutional

The Second Circuit held that “the FCC indecency policy is unconstitutional because it is impermissibly vague.” A law or regulation is vague if it does not give a person of ordinary intelligence a reasonable opportunity to know what is prohibited.

The Second Circuit gave examples where the FCC had determined that “bullshit” was patently offensive, whereas “dickhead” was not. True, it is rather difficult to understand why one word would be deemed “vulgar, graphic and explicit,” but not the other one.

The Second Circuit also argued that, since the standards used by the FCC are “indiscernible,” there is a risk that they “will be enforced in a discriminatory manner.” However, the Second Circuit “ha[s] no reason to suspect that the FCC is using its indecency policy as a means of suppressing particular points of view.” The mere risk of subjectivity is a chill to speech protected by the First Amendment.