[lg policy] more ling. hygiene from Constitution Law Prof Blog: FCC's Fleeting Expletives Policy is Unconstitutionally Vague

Harold Schiffman hfsclpp at GMAIL.COM
Wed Jul 14 14:32:59 UTC 2010

FCC's Fleeting Expletives Policy is Unconstitutionally Vague

A three-judge panel of the Second Circuit ruled today that the FCC's
"fleeting expletives" policy for broadcast television is
unconstitutionally vague.  The ruling follows a remand from the
Supreme Court last year.  In that case, the Supreme Court overturned
the Second Circuit's ruling that the fleeting expletives rule was
arbitrary and capricious under the Administrative Procedures Act, but
declined to address the First Amendment issue.

Today's ruling takes up the First Amendment issue (though under
vagueness doctrine, not ruling on the level of scrutiny) and tees the
case up yet again for Supreme Court review.

The FCC in 2001 adopted a policy that ruled content indecent following
two determinations: (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 considered three factors
in determining whether a broadcast was 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 material appears to have been
presented for its shock value."  The Commission stated that "fleeting
expletives" were not indecent under the second prong.

But in 2004, in reaction to Bono's enthusiastic acceptance speech at
the 2003 Golden Globe Awards, the FCC changed course and ruled that a
single, non-literal use of an expletive could be actionably indecent.
The FCC applied the policy aggressively (and seemingly inconsistently)

The Second Circuit ruled the policy unconstitutionally vague.  The
court explained (in language that itself might violate the policy):

We agree with the Networks that the indecency policy is impermissibly
vague.  The first problem arises in the FCC's determination as to
which words or expressions are patently offensive.  For instance,
while the FCC concluded that "bullshit" in a "NYPD Blue" episode was
patently offensive, it concluded that "dick" and "dickhead" were not.
. . .  Other expletives such as "pissed off," "up yours," "kiss my
ass," and "wiping his ass" were also not found to be patently
offensive. . . .  [I]n each of these cases, the Commission's reasoning
consisted of repetition of one or more of the factors without any
discussion of how it applied them.  Thus, the word "bullshit" is
indecent because it is "vulgar, graphic and explicit" while the words
"dickhead" was not indecent because it was "not sufficiently vulgar,
explicit, or graphic."  This hardly gives broadcasters notice of how
the Commission will apply the factors in the future.

Op. at 23.

As to the news and artistic exceptions, the court illustrated the
vagueness problem thus:

Take, for example, the disparate treatment of "Saving Private Ryan"
and the documentary, "The Blues."  The FCC decided that the words
"fuck" and "shit" were integral to the "realism and immediacy of the
film experience for viewers" in "Saving Private Ryan," but not in "The
Blues." . . .  We query how fleeting expletives could be more
essential to the "realism" of a fictional movie than to the "realism"
of interviews with real people about real life events, and it is hard
not to speculate that the FCC was simply more comfortable with the
themes in "Saving Private Ryan," a mainstream movie with a familiar
cultural milieu, than it was with "The Blues," which largely profiled
an outsider genre of musical experience.  But even if there were a
perfectly benign way of explaining these particular outcomes, nothing
would prevent the FCC from applying its indecency policy in a
discriminatory manner in the future.

Op. at 28.

The court invited reevaluation of the Supreme Court's 1978 ruling in
FCC v. Pacifica, the case holding (narrowly) that the FCC could impose
a civil forfeiture for George Carlin's "Filthy Words" monologue, a
12-minute string of expletives broadcast at 2:00 in the afternoon (but
not obscene).  The court wrote that technology (like the V-chip) now
allows blocking of unwanted content in a way that was unavailable at
the time of Pacifica but was central to the Supreme Court's 2000
ruling in U.S. v. Playboy (overturning, under strict scrutiny
analysis, federal law prohibiting cable television operators from
broadcasting sexual content during certain hours).  In light of
technological advances, the panel suggested that Playboy's strict
scrutiny, and not Pacifica's lower level of scrutiny, provides the
right standard of review.  The court:

We can think of no reason why [the rationale in Playboy] for applying
strict scrutiny in the case of cable television would not apply with
equal force to broadcast television in light of the V-chip technology
that is now available.

Op. at 17.  The policy here would almost surely fail under strict
scrutiny--just as the policy in Playboyfailed--because there are less
restrictive ways (e.g., the V-chip) of achieving the Commission's end
of protecting against indecencies on broadcast television.

But the court did not take on this task itself.  Instead, it dodged
the standard issue and ruled the FCC's policy unconstitutionally

Given the panel's suggestions, look for the eventual appeal to the
Supreme Court to raise the continued relevancy of Pacifica and to urge
strict scrutiny for FCC's indecency policy for broadcast television,
in addition to the vagueness question.


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