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January 14 2012

22:12

July 13 2010

19:48

The First Amendment wins one

Bravo. The Court of Appeals has struck down the FCC’s indecency rule — specifically, its fines for “fleeting expletives” — as “unconstitutionally vague.”

No shit.

Fox is the official victor here. The other networks also win. But we all win whenever the First Amendment does.

The Appeals Court, to its credit, notes how much media and the country have changed since George Carlin first uttered his seven dirty words on radio and the Supreme Court blushed. Says the appeals panel:

The Networks argue that the world has changed since Pacifica and the reasons underlying the decision are no longer valid. Indeed, we face a media landscape that would have been almost unrecognizable in 1978. Cable television was still in its infancy. The Internet was a project run out of the Department of Defense with several hundred users. Not only did Youtube, Facebook, and Twitter not exist, but their founders were either still in diapers or not yet conceived. In this environment, broadcast television undoubtedly possessed lives of all Americans.”

The same cannot be said today. 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. As the FCC itself acknowledges, “[c]hildren today live in a media environment that is dramatically different from the one in which their parents and grandparents grew up decades ago.”

Nonetheless, the Supreme Court’s doctrine in the Carlin decision stands. But this court is not reinterpreting that rule of law. Instead it finds that the FCC’s police is “impermissibly vague.” That is: “A law or regulation is impermissibly vague if it does not ‘give the person of ordinary intelligence a reasonable opportunity to know what is prohibited.’” And the First Amendment requires extra attention to protection from such vagueness. The court said:

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…. 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. The English language is rife with creative ways of depicting sexual or excretory organs or activities, and even if the FCC were able to provide a conew offensive and indecent words are invented every day….

The same vagueness problems plague the FCC’s presumptive prohibition on the words “fuck” and “shit” and the exceptions thereto. Under the FCC’s current policy, all variants of these two words are indecent unless one of two exceptions apply. The first is the “bona fide news” exception, which the FCC has failed to explain except to say that it is not absolute. The second is the artistic necessity exception, in which fleeting expletives are permissible if they are “demonstrably essential to the nature of an artistic or educational work or essential to informing viewers on a matter of public importance.”

That’s how Saving Private Ryan got away with “fuck” and “shit” while on The Blues, they were dirty. In other words: when white people say them, the words are clean, but not when black people say them. Says the court: “The FCC created these exceptions because it words would raise grave First Amendment concerns.” Yup.

The policy may maximize the amount of speech that the FCC can prohibit, but it results in a standard that even the FCC cannot articulate or apply consistently. Thus, it found the use of the word “bullshitter” on CBS’s The Early Show to be “shocking and gratuitous” because it occurred “during a morning television interview,” before reversing itself because the broadcast was a “bona fide news interview.” In other words, the FCC reached diametrically opposite conclusions at different stages of the proceedings for precisely the same reason – that the word “bullshitter” was uttered during a news program. And when Judge Leval asked during oral argument if a program aboutthe dangers of pre-marital sex designed for teenagers would be permitted, the most that the FCC’s lawyer could say was “I suspect it would.” With millions of dollarAmendment values at stake, “I suspect” is simply not good enough.

Importantly, the court recognizes that the FCC has chilled speech. CBS affiliates would not air a 9/11 documentary because it contained curse words — and I can’t imagine a better cause for them. As I argued in this column, bullshit is political speech. Sandra Loh was fired from an NPR station because she said a bad word. “Broadcasters,” the court says, “may well decide not to invite controversial guests on to t heir programs for fear that an unexpected fleeting expletive will result in fines.” A station did not air Pat Tillman’s funeral because of family members’ grief and language. Fix didn’t air a repeat of a That ’70s Show episode — a Kaiser Family Foundation award winner — that dealt with masturbation. They were no longer masters of their domain.

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 topics at the broadcaster’s peril has the effect of promoting wide self-censorship material which should be completely protected under the First Amendment.

All is not won. The Appeals Court says the FCC could create constitutional policy — this just isn’t it. And this could return to the Supreme Court. But for now, let’s all say a celebratory “BULLSHIT.”

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