2nd Circuit Holds FCC Indecency Policy Violates First Amendment

July 13, 2010. The U.S. Court of Appeals (2ndCir) issued its opinion [32 pages in PDF], on remand from the Supreme Court, in Fox Television Stations v. FCC.

The Court of Appeals held that the Federal Communications Commission's (FCC) indecency policy "violates the First Amendment because it is unconstitutionally vague, creating a chilling effect that goes far beyond the fleeting expletives at issue here". It vacated the FCC's order.

This holding was expected. In 2006 the FCC issued an order that fined broadcasters for unscripted fleeting expletives. The Court of Appeals vacated and remanded, on the grounds that the FCC's new fleeting expletives policy is arbitrary and capricious under the Administrative Procedure Act (APA) for failing to articulate a reasoned basis for the change in policy. The Court of Appeals did not rule on the First Amendment challenge. However, it wrote that "we are skeptical that the Commission can provide a reasoned explanation for its ``fleeting expletive´´ regime that would pass constitutional muster". In 2009, the Supreme Court reversed on the basis that the APA does not preclude unexplained shifts of long standing policy. It too did not address the Constitutional issues. Rather, it remanded the case to the Court of Appeals. The just released opinion of the Court of Appeals takes up the First Amendment issues.

FCC Chairman Julius Genachowski stated in a release that "We're reviewing the court's decision in light of our commitment to protect children, empower parents, and uphold the First Amendment."

2006 FCC Order. On November 6, 2006, the FCC adopted and released an Order [36 pages in PDF] regarding complaints that four broadcast television programs contained indecent and/or profane material within the meaning of 18 U.S.C. § 1464. This order is FCC 06-166.

The Order concluded, among other things, that comments made by Nicole Richie during "The 2003 Billboard Music Awards" and by Cheryl LaPiere during the "The 2002 Billboard Music Awards" were indecent and profane. Both used the word fuck in unscripted live statements.

See also, stories titled "FCC Releases Indecency Orders" in TLJ Daily E-Mail Alert No. 1,332, March 20, 2006, and "FCC Releases Order on Remand Regarding Broadcast Indecency" in TLJ Daily E-Mail Alert No. 1,484, November 7, 2006.

Section 1464 provides in full that "Whoever utters any obscene, indecent, or profane language by means of radio communication shall be fined under this title or imprisoned not more than two years, or both."

2007 Court of Appeals Opinion. Broadcasters fined by the FCC, including Fox, filed petitions for review of the FCC's order with the Second Circuit.

They argued both that the order is arbitrary and capricious in violation of the APA, and unconstitutional under the First Amendment.

On June 4, 2007, the Court of Appeals issued its divided opinion [53 pages in PDF] finding that "the FCC's new policy sanctioning ``fleeting expletives´´ is arbitrary and capricious" under the APA. The Court of Appeals did not also rule on the Constitutional challenge, but strongly hinted that if required to address that issue, it would find the FCC's policy unconstitutional.

The FCC did not then withdraw or modify its order. Rather, it petitioned the Supreme Court for writ of certiorari, even though a victory at the Supreme Court on the APA issue would only cause the case to be remanded to the Court of Appeals, which would then likely hold the FCC policy unconstitutional.

See, story titled "2nd Circuit Vacates and Remands FCC Profanity Order" in TLJ Daily E-Mail Alert No. 1,590, June 4, 2007. That opinion is reported at 489 F. 3d 444.

2009 Supreme Court Opinion. On April 28, 2009, the Supreme Court issued its divided opinion, reversing the Court of Appeals.

The Supreme Court wrote that the Constitutional issues "will be determined soon enough, perhaps in this very case. ... We see no reason to abandon our usual procedures in a rush to judgment without a lower court opinion. We decline to address the constitutional questions at this time."

See, story titled "Supreme Court Reverses in FCC v. Fox" in TLJ Daily E-Mail Alert No. 1,932, April 28, 2009.

Just Issued Opinion. The Court of Appeals held that the FCC's indecency policy is unconstitutionally vague. It vacated the FCC's order. It did not rule regarding whether strict scrutiny, or some other standard, applies to FCC regulation of broadcast television.

The Court of Appeals concluded that "the absence of reliable guidance in the FCC’s standards chills a vast amount of protected speech dealing with some of the most important and universal themes in art and literature. Sex and the magnetic power of sexual attraction are surely among the most predominant themes in the study of humanity since the Trojan War. The digestive system and excretion are also important areas of human attention. By prohibiting all ``patently offensive´´ references to sex, sexual organs, and excretion without giving adequate guidance as to what ``patently offensive´´ means, the FCC effectively chills speech, because broadcasters have no way of knowing what the FCC will find offensive. To place any discussion of these vast topics at the broadcaster's peril has the effect of promoting wide self-censorship of valuable material which should be completely protected under the First Amendment."

The Court of Appeals first reviewed Section 1464, the FCC's history of enforcement of this section, the broadcasts at issue in this case, the FCC's order, and the judicial proceedings in this case.

It also reviewed the Supreme Court's 1978 opinion in FCC v. Pacifica Foundation, 438 U.S. 726. That opinion upheld the FCC's order penalizing the broadcast of a dirty words monologue by a comedian named George Carlin. However, it did not establish a standard of review for broadcast TV.

The Court then (starting at page 14) began its analysis of the First Amendment challenge to the FCC's policy.

"It is well-established that indecent speech is fully protected by the First Amendment." The Court of Appeals continued, "In most contexts, the Supreme Court has considered restrictions on indecent speech to be content-based restrictions subject to strict scrutiny."

However, the Court of Appeals conceded that "Broadcast radio and television ... have always occupied a unique position when it comes to First Amendment protection."

The Court explained that "it was in Pacifica that the Supreme Court gave its fullest explanation for why restrictions on broadcast speech were subject to a lower level of scrutiny, relying on the twin pillars of pervasiveness and accessibility to children. ... While Pacifica did not specify what level of scrutiny applies to restrictions on broadcast speech, subsequent cases have applied something akin to intermediate scrutiny."

The Court concluded that much has changed since the Supreme Court ruled in 1978. "The past thirty years has seen an explosion of media sources, and broadcast television has become only one voice in the chorus. Cable television is almost as pervasive as broadcast -- almost 87 percent of households subscribe to a cable or satellite service -- and most viewers can alternate between broadcast and non-broadcast channels with a click of their remote control. ... The internet, too, has become omnipresent, offering access to everything from viral videos to feature films and, yes, even broadcast television programs."

"Moreover, technological changes have given parents the ability to decide which programs they will permit their children to watch. Every television, 13 inches or larger, sold in the United States since January 2000 contains a V-chip, which allows parents to block programs based on a standardized rating system. ... Moreover, since June 11, 2009, when the United States made the transition to digital television, anyone using a digital converter box also has access to a V-chip."

"In short, there now exists a way to block programs that contain indecent speech in a way that was not possible in 1978. In fact, the existence of technology that allowed for household-by-household blocking of ``unwanted´´ cable channels was one of the principle distinctions between cable television and broadcast media drawn by the Supreme Court" in 2000 in US v. Playboy, 529 U.S. 803.

The Supreme Court wrote in its opinion in Playboy that "The option to block reduces the likelihood, so concerning to the Court in Pacifica, that traditional First Amendment scrutiny would deprive the Government of all authority to address this sort of problem. The corollary, of course, is that targeted blocking enables the Government to support parental authority without affecting the First Amendment interests of speakers and willing listeners -- listeners for whom, if the speech is unpopular or indecent, the privacy of their own homes may be the optimal place of receipt."

The Court of Appeals then wrote that "We can think of no reason why this rationale 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."

But, it did not so hold. It wrote that "we do not need to wade into the brambles". Rather, it concluded that "regardless of where the outer limit of the FCC's authority lies, the FCC's indecency policy is unconstitutional because it is impermissibly vague".

The remainder of the Court of Appeals' opinion (from page 18) is devoted to the question of vagueness.

"Broadcasters are entitled to the same degree of clarity as other speakers, even if restrictions on their speech are subject to a lower level of scrutiny. It is the language of the rule, not the medium in which it is applied, that determines whether a law or regulation is impermissibly vague."

The Court concluded 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."

"The same vagueness problems plague the FCC’s presumptive prohibition on the words ``fuck´´ and ``shit´´ and the exceptions thereto." The problem, the Court wrote, is that the FCC has two exceptions -- for "artistic necessity" and "bona fide news" -- which it has applied in decisions, but that there "is little rhyme or reason to these decisions and broadcasters are left to guess whether an expletive" will be allowed by the FCC.

The Court also noted that such "indiscernible standards" create the risk that they will be "enforced in a discriminatory manner".

The Court then found that this FCC policy has chilled protected speech. "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. Indeed, there is ample evidence in the record that the FCC’s indecency policy has chilled protected speech."

Finally, the Court added that "We do not suggest that the FCC could not create a constitutional policy."

Reaction. Dennis Wharton of the National Association of Broadcasters (NAB) stated in a release that the "NAB supports today's appellate court decision. As broadcasters, we will continue to offer programming that is reflective of the diverse communities we serve. We believe that responsible decision making by network and local station executives, coupled with program blocking technologies like the V-chip, is far preferable to government regulation of program content."

The Future of Music Coalition (FOMC), which intervened in the Court of Appeals, stated in a release that "The result of this policy has been a chilling effect on creativity on the public airwaves, due to broadcasters' fears of getting fined for airing ``offensive´´ content. For example, Ken Burns' documentary, ``The War,´´ was aired in two different versions to satisfy PBS affiliates worried about possible FCC sanctions. In a situation like this, creators are left guessing what constitutes indecent material, which leads to self-censoring. That's hardly good for art and culture, and it also serves to mute our First Amendment right to free speech. Good thing we won." See also, joint brief [65 pages in PDF] filed by the FOMC and the Center for Creative Voices.

FCC Commissioner Michael Copps (at right) issued a statement. He wrote, in full, that "I am shocked by such an anti-family decision coming out of the Second Circuit Court of Appeals. Sadly, the court focused its energies on the purported chilling effect our indecency policy has on broadcasters of indecent programming, and no time focusing on the chilling effect today’s decision will have on the ability of American parents to safeguard the interests of their children. I hope that this decision is appealed -- and ultimately reversed. In the meantime, as even this court recognizes, the FCC has the power to create a constitutional and enforceable indecency policy. I'm convinced we already have one. In light of the uncertainty created by today's decision, I call on this Commission to move forward immediately to clarify and strengthen its indecency framework to ensure that American parents can protect their children from the indecent and violent images that bombard us more and more each day. These parents -- millions of them -- are waiting."

This case is Fox Television Stations, Inc., et al. v. FCC and USA, U.S. Court of Appeals for the 2nd Circuit, App. Ct. Nos. 06-1760-ag, 06-2750-ag, and 06-5358-ag. Judge Pooler wrote the opinion of the Court of Appeals, in which Judge's Leval and Hall joined.