US: Linguistic hygiene policy and the FCC

Harold Schiffman hfsclpp at
Tue Jun 5 14:20:33 UTC 2007

FCC policy on expletives struck down

Bush, Cheney blurt out profanities, so TV can, too, appeals court rules

* 08:59 AM CDT on Tuesday, June 5, 2007, **The New York Times*

WASHINGTON – If President Bush and Vice President Dick Cheney can blurt out
vulgar language, then the government cannot punish television stations for
broadcasting the same words in similarly fleeting contexts. That, in
essence, was the decision Monday, when a federal appeals court struck down
the government policy that allows stations and networks to be fined if they
broadcast profanities. Although the case was primarily concerned with what
is known as "fleeting expletives," or blurted profanities, on television,
both network executives and top officials at the Federal Communications
Commission said the opinion could gut the ability of the commission to
regulate any speech on television or radio.

Adopting an argument made by lawyers for NBC, the court cited examples in
which Mr. Bush and Mr. Cheney had used the same language that would be
penalized under the policy. Mr. Bush was caught on videotape last July using
a common vulgarity in a conversation with Prime Minister Tony Blair of
Britain. During a Group of Eight summit in St. Petersburg, Russia, Mr. Bush
told Mr. Blair, "See, the irony is that what they need to do is get Syria to
get Hezbollah to stop doing this [expletive], and it's over."*  *

The decision was written by Judge Rosemary Pooler, a Clinton appointee. She
was joined by Judge Peter Hall, who was appointed by President Bush. The
dissent was written by Judge Pierre Leval, a Clinton appointee.

Three years ago, Mr. Cheney was widely reported to have muttered an angry,
profane version of "get lost" to Sen. Patrick Leahy on the floor of the U.S.
Senate. Beginning with the FCC's indecency finding in a case against NBC for
an obscenity uttered by U2 singer Bono during the Golden Globes ceremony in
2003, Mr. Bush's appointees to the commission have imposed a tougher policy
by punishing any station that broadcast a fleeting expletive. Reversing
decades of more lenient policy, the FCC had found that the mere utterance of
certain profane words implied that sexual or excretory acts were carried out
and therefore violated the rules.

"We find that the FCC's new policy regarding 'fleeting expletives' fails to
provide a reasoned analysis justifying its departure from the agency's
established practice," said the decision by a divided panel of the 2nd U.S.
Circuit Court of Appeals in New York. The court said vulgar words were just
as often used out of frustration or excitement, and not to convey any
broader obscene meaning: "In recent times even the top leaders of our
government have used variants of these expletives in a manner that no
reasonable person would believe referenced sexual or excretory organs or

Emily Lawrimore, a White House spokeswoman, said Mr. Bush and Mr. Cheney had
no comment about the court's ruling.*  *Kevin Martin, chairman of the FCC,
said the agency was considering whether to seek an appeal before all the
judges of the appeals court or to take the matter directly to the Supreme
Court. For the four television networks that filed the lawsuit – Fox, CBS,
NBC and ABC – the decision was a major victory in a legal and cultural
battle they are waging with the FCC and its supporters.

Under Mr. Bush, the FCC has expanded its indecency rules, taking a much
harder line on obscenities uttered on broadcast television and radio. While
the court sent the case back to the commission to rewrite its indecency
policy, it said that it was "doubtful" that the agency would be able to
"adequately respond to the constitutional and statutory challenges raised by
the networks."*  *The networks hailed the decision.

"We are very pleased with the court's decision and continue to believe that
the government regulation of content serves no purpose other than to chill
artistic expression in violation of the First Amendment," said Scott Grogin,
a senior vice president at Fox. "Viewers should be allowed to determine for
themselves and their families, through the many parental control
technologies available, what is appropriate viewing for their home." The
FCC's Mr. Martin attacked the court's reasoning.

"I completely disagree with the court's ruling and am disappointed for
American families," he said. "The court says the commission is 'divorced
from reality.' It is the New York court, not the commission, that is
divorced from reality." He said that if the FCC were unable to prohibit some
vulgarities during prime time, "Hollywood will be able to say anything they
want, whenever they want." The case involved findings that the networks had
violated the indecency rules for comments by Cher and Nicole Richie on the
2002 and 2003 editions of the Billboard Music Awards, respectively; the use
of expletives by Detective Andy Sipowicz on *NYPD Blue*; and a comment on *The
Early Show* by a *Survivor* contestant.

The commission did not issue fines in any of the cases because the programs
were broadcast before the agency changed its policy. But the networks were
concerned about the new interpretation of the rules, particularly since the
agency has been issuing a record number of fines. Broadcast television
executives also have complained about what they say has been the arbitrary
application of the rules. They expressed concern, for instance, that they
might be penalized for broadcasting *Saving Private Ryan*, a Steven
Spielberg movie about World War II, because of the repeated use of

But the FCC in that case ruled in favor of the networks, finding that
deleting the expletives "would have altered the nature of the artistic work
and diminished the power, realism and immediacy of the film experience for

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