Federal appeals court strikes down FCC’s indecency rule

WASHINGTON – A federal appeals court struck down the Federal Communication Commission’s indecency policy in a July 12 ruling that raised the ire of family-friendly television advocates around the country.

Even though the Supreme Court last year said in a 5-4 decision that the FCC had the authority to enforce such a policy, the 2nd U.S. Circuit Court of Appeals in Manhattan tossed out the policy, saying it was unconstitutionally vague. The appeals court had issued a similar ruling in 2007, which led to the Supreme Court review. The high court’s decision was that of a procedural ruling, and the justice returned the case to the appellate court for a ruling on constitutional issues.

The FCC policy levied fines for airing indecent material on broadcast television or radio.

At issue in the appeals case was a word uttered by singer Bono of U2 during the 2003 Golden Globe Awards, which aired live on NBC.

One irony is that newspapers, which are not subject to FCC scrutiny, themselves blanched at publishing the word, opting instead to include only the first letter followed by a series of hyphens, or to vaguely describe the word along the lines of “a sexual vulgarism,” or use the first letter of the word, followed by a hyphen and the word “word.” In Bono’s case, he used the F-word.

The FCC had said that word, in any context, “inherently has a sexual connotation” and can lead to enforcement.

But the three-judge panel, in a unanimous decision, said the policy had “a chilling effect that goes far beyond the fleeting expletives at issue here.”

“Part of me sympathizes with the broadcast TV networks, said Morality in Media president Robert Peters in a July 14 statement. “The FCC’s broadcast indecency enforcement ‘policy’ is a mess because of federal court decisions, because enforcement policies change with changes in presidential administrations, and because the FCC commissioners and FCC Enforcement Bureau don’t always see eye to eye when it comes to broadcast indecency.”

The FCC had not issued a comment within two days of the ruling, but it is expected to appeal, and an appeal would likely reach the Supreme Court. Michael Copps, a Catholic and one of three Democrats on the five-member FCC, has long argued for setting and enforcing indecency standards.

The FCC policy at issue has two significant tests to determine indecency. One is whether the material describes or depicts sexual or excretory organs or activities. The other is whether a broadcast is “patently offensive as measured by contemporary community standards.”

“We do not suggest that the FCC could not create a constitutional policy,” the court said. “We hold only that the FCC’s current policy fails constitutional scrutiny.”

The FCC’s policy is not all-encompassing. It covers only broadcast TV and radio. And covers only the hours of 6 a.m.-10 p.m., when children would be watching or listening.

In theory, other offensive language and content could be aired during the late-night and overnight hours. “But you never see or hear that material from broadcasters,” Dennis Wharton, spokesman for the National Association of Broadcasters, told The Washington Post, “because of the relationships and expectations we’ve built with our audiences over decades.”

Concerned Women of America CEO Penny Nance bristled at the decision. “This ruling undermines decency standards which have been around for decades and allows broadcasters to barrage our families in their homes with programming that is profane at whatever time, regardless if there are children in the broadcast audience,” Nance said in a July 14 statement.

“While understanding the difficult challenge faced by broadcasters who could be charged with ‘fleeting’ indecency violations over which they had little or no control, the court has unfortunately created an indecency loophole through which you can drive a truck,” Frank Wright, who is president and CEO of the National Religious Broadcasters, said in a July 14 statement. “Left unchallenged, this decision will likely result in a flood of ‘unscripted’ profanity at times when there are likely children in the listening and viewing audience.”

“Both the public and broadcasters would benefit if the FCC did its homework – with input from the public and industry – and crafted a more coherent policy,” said Morality in Media’s Peters. “The truth of the matter is, of course, that a more coherent policy shouldn’t be needed. In particular, when it comes to the well-being of children, broadcasters should know what is and isn’t appropriate and act accordingly. If they don’t know, they shouldn’t be broadcasters.”

Broadcasters today, he added, “would rather play a cat-and-mouse game with the FCC, constantly pushing the envelope and then complaining that they don’t know whether the FCC will deem this or that transgression of community standards actionable.”

Catholic Review

The Catholic Review is the official publication of the Archdiocese of Baltimore.