The broadcast television networks are celebrating a major victory today, following a New York appellate court ruling that has declared the FCC’s zero-tolerance indecency policy to be a violation of the 1st Amendment’s protection of free speech, according to a report by the LA Times.
The ruling specifically comes from the 2003 Golden Globes, when U2 front man Bono used an expletive on live TV after receiving an award. The result began a crackdown by the FCC that saw record setting fines levied on broadcasters that aired any programming- including live shows- that had instances of indecency and profanity, not matter how fleeting or unintentional.
In 2006, Congress voted to increase the maximum fine by ten times after Janet Jackson’s infamous “wardrobe malfunction” at the halftime show of the 2004 Super Bowl, which further empowered the FCC. In some instances, the FCC also has the power to pull the license of broadcasters altogether.
The three-judge panel of the 2nd Circuit Court of Appeals in New York, ruled that the FCC’s policy was “unconstitutionally vague” and created a “chilling effect” on what broadcasters chose to air. The court found that the threat of such heavy fines from the FCC caused programmers to curtail and self-censor programming solely to avoid fines.
“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,” U.S. Circuit Judge Rosemary S. Pooler stated in Tuesday’s 3-0 decision. “Indeed, there is ample evidence in the record that the FCC’s indecency policy has chilled protected speech.”
The FCC now has the option to appeal to the Supreme Court, but has not yet declared what its next step would be.
“If the FCC’s policy is allowed to remain in place, there will undoubtedly be countless other situations where broadcasters will exercise their editorial judgment and decline to pursue contentious people or subjects, or will eschew live programming altogether, in order to avoid the FCC’s fines,” the ruling states. “This chill reaches speech at the heart of the First Amendment.”
In 2007, the same apples court ruled on an FCC case regarding fleeting expletives, and found that the FCC’s policy was “arbitrary and capricious”. The FCC appealed the ruling to the Supreme Court, who upheld the appeals court’s decision based on the way the FCC enacted the policies, but returned the case the appeals court to rule on the broader constitutionality of the profanity ban.
The practical results of the ruling should be felt soon. Although FCC restrictions still prevent expletives from being aired between 6am and 10pm during times children may be listening, after 10pm, broadcasters are free to use any language they wish. Live programming shows will also be able to breathe a sigh of relief, as the fines for fleeting expletives will no longer threaten the broadcasters’ licenses.