YNOT – A federal appeals court in Manhattan on Tuesday tossed out the U.S. Federal Communications Commission’s policy governing indecent speech on the public airwaves, ruling the commission’s rules “unconstitutionally vague.”The 2nd U.S. Court of Appeals determined the policy, which was adopted in 2004 and allows the FCC to fine broadcasters if even a fleeting reference to sex or excrement makes its way into a live event on free television or radio, violates the First Amendment.
“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,” the appellate panel wrote. “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 FCC adopted the policy following an incident during NBC’s January 2003 live broadcast of the Golden Globes awards ceremony. Off the cuff, U2 lead singer Bono uttered the phrase “fucking brilliant,” prompting consumer and watchdog complaints to the FCC. In response, the commission, then led by Michael Powell, ruled that regardless of context, the F-word “inherently has a sexual connotation.”
Subsequent fleeting infractions issued from the lips of, among others, Cher, Paris Hilton and Nicole Richie during live awards-show broadcasts, prompting Rupert Murdoch’s notoriously conservative Fox network, CBS and other broadcasters to file a 2006 federal lawsuit challenging the resulting fines.
The FCC may attempt to craft a new policy that will pass constitutional scrutiny. The three-judge appellate panel indicate more narrowly tailored definitions would benefit the regulations.
“We’re reviewing the court’s decision in light of our commitment to protect children, empower parents and uphold the First Amendment,” FCC Chairman Julius Genachowski said.
Constitutional scholars expect the ruling to be appealed to the U.S. Supreme Court. The case has been there once. The supremes overturned a lower court’s decision on technical, but not constitutional, grounds.
