NEW YORK (AP) - A federal appeals court on Tuesday struck down a government policy that can lead to broadcasters being fined for allowing even a single curse word on live television, saying it is unconstitutionally vague and threatens speech “at the heart of the First Amendment.”
The 2nd U.S. Circuit Court of Appeals in Manhattan threw out the 2004 Federal Communications Commission policy, which said that profanity referring to sex or excrement is always indecent.
“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 court 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,” it added.
The court said the FCC might be able to craft a policy that does not violate the First Amendment.
It cited several examples of chilled speech, including a Vermont station’s refusal to air a political debate because one local politician previously had used expletives on the air and a Moosic, Pa., station’s decision to no longer provide live coverage of news events unless they affect matters of public safety or convenience.
“This chill reaches speech at the heart of the First Amendment,” the appeals court said.
In a statement, FCC Chairman Julius Genachowski said: “We’re reviewing the court’s decision in light of our commitment to protect children, empower parents, and uphold the First Amendment.”
Carter Phillips, a Washington lawyer who argued the case for Fox Television Stations Inc., called the decision satisfying. He said the court had “sent the FCC back to square one to start over” by not only tossing the FCC’s fleeting expletive policy but also a broader indecency policy as unconstitutionally vague.
Andrew Jay Schwartzman, policy director of Media Access Project, which joined the case on behalf of musicians, producers, writers and directors, said: “The score for today’s game is First Amendment one, censorship zero.”
Parent Television Council President Tim Winter said the ruling was a slap in the face to parents and families.
“Let’s be clear about what has happened here today: A three-judge panel in New York once again has authorized the broadcast networks unbridled use of the `F-word’ at any time of the day, even in front of children,” Winter said in a statement.
The FCC’s fleeting expletive policy was put in place after a January 2003 NBC broadcast of the Golden Globes awards show, in which U2 lead singer Bono uttered the phrase “f–– brilliant.” The FCC said the F-word in any context “inherently has a sexual connotation” and can lead to enforcement.
Fox Television Stations, owned by Rupert Murdoch’s News Corp., and other networks challenged the policy in 2006 after the FCC cited the use of profanity during awards programs that were aired in 2002 and 2003.
The FCC found its ban also was violated by a Dec. 9, 2002, broadcast of the Billboard Music Awards in which singer Cher used the phrase “F– ‘em” and a Dec. 10, 2003, Billboard awards show in which reality show star Nicole Richie said, “Have you ever tried to get cow s– out of a Prada purse? It’s not so f–– simple.”