Appeals Court Strikes Down FCC Indecency Rule

By Jason Beahm on July 13, 2010 | Last updated on March 21, 2019

A federal appeals court has struck down the Federal Communications Commission's indecency rule. The ground breaking case is a major win for Fox Television, CBS Broadcasting, ABC and broadcast stations in general. The case is titled Fox Tel. Stations, Inc. v. FCC, 06-1760.

The court found that the FCC indecency rule is unconstitutional as it violates the First Amendment.  The case revolves around so called, "fleeting expletives," when a person says an expletive in an unscripted way. The most famous case was from Bono of the band U2 in 2003, who said at the Golden Globe Awards, upon receiving an award, "this is really, really, f**king brilliant. Really, really, great."

Up until that point, when considering indecency, the FCC had considered (1) whether the material "describe[s] or depict[s] sexual or excretory organs or activities"; and (2) whether the broadcast is "patently offensive as measured by contemporary community standards for the broadcast medium." The FCC further explained that it considered the following three factors in determining 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." The FCC reiterated that "fleeting and isolated" expletives were not actionably indecent.

In response to complaints filed after Bono's remarks, the FCC declared, for the first time, that a fleeting expletive could be actionably indecent. The FCC stated that "the 'F-Word' is one of the most vulgar, graphic, and explicit descriptions of sexual activity in the English language and...inherently has a sexual connotation."

From that point forward, the FCC stepped up it's enforcement under the new standard. In 2004, congress also voted to increase fines ten fold after the Super Bowl, where Justin Timberlake exposed Janet Jackson's breast during their halftime show. By comparison in 2003 the FCC imposed $440,000 in fines. In 2004 it was $8 million. This meant that stations that aired anything possibly obscene and indecent risked facing enormous fines. They complained that this policy interfered with their right to free speech.

The United States Court of Appeals for the Second Circuit agreed, finding:

We now hold that 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.

No word yet on the FCC's response, but this is a case that seems destined to return to the U.S. Supreme Court. The Supreme Court already upheld the FCC's indecency rule under a different challenge, after a lower court found the rule "arbitrary and capricious." After reversing that decision, the Supreme Court declined to analyze whether the FCC indecency rule violates the First Amendment.

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