Fox vs. FCC

Legal Definition of “Indecency” “language that describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities or organs, at times of the day when there is a reasonable risk that children may be in the audience”

Making an Indecency Determination Full context –The “explicitness or graphic nature” of the material –The extent to which the material “dwells on or repeats the offensive material” –The extent to which the material was presented “to pander,” “titillate” or to “shock”

Fleeting Images

2004 CBS Super-bowl Halftime Jackson/Timberlake wardrobe malfunction Unexpected event in a live broadcast Duration of 9/16th of one second $550,000 fine imposed on CBS

Subsequent Legal Activity $550,000 overturned by a Federal Appeals Court In 2009 the Supreme Court asked the Federal Appeals Court to reconsider

Fleeting Expletives

2003 Golden Globes Awards Parents Television Council complained about Bono’s acceptance remarks for the award for “best original song” –“this is really, really, f***ing brilliant” The FCC concluded the material was not indecent because – in context, Bono’s language did not describe sexual/excretory organs/activities –the remark was fleeting and isolated

Reversal Five months later the FCC reversed the Bono decision –“any use of that word or a variation, in any context, inherently has a sexual connotation” –The word is “patently offensive”--”the use of the ‘F-word’ here, on a nationally telecast awards ceremony, was shocking and gratuitous”

2002 and 2003 Billboard Music Awards Fleeting expletives by Cher and Nicole Richie –Cher: “People have been telling me I’m on the way out every year, right? So f*** em” –Nicole: “Have you ever tried to get cow s*** out of a Prada purse? It’s not so f***ing simple”

2006 Federal Appeals Court Fox appealed the finding of indecency The court found the FCC reversal of policy to be “arbitrary and capricious” and vacated the FCC finding

Reasons for the Reversal--1 Both President Bush and Vice-President Cheney have been caught on tape using “fleeting expletives.” (reported in news broadcasts) –Bush to Tony Blair that the UN needed to “get Syria to get Hezbollah to stop doing this s***” –Cheney’s comment to Senator Patrick Leahy on the floor of the U.S. Senate: “F*** yourself.”

Reasons--continued These vulgar words are less about indecency than about frustration or excitement How can this be reconciled with the FCC decision to not impose fines on the broadcast of “Saving Private Ryan” (full of such words) –To delete the language “would have altered the nature of the artistic work and diminished the power, realism and immediacy of the film experience for viewers.”

2009 Supreme Court Decision Reversed the Appeals Court(5-4) The majority on Court did not consider the First Amendment issue, but upheld the FCC on the basis that their action was not “arbitrary and capricious” –Scalia: “the pervasiveness of foul language and the coarsening of public entertainment in other media such as cable justify more stringent regulation of broadcast programs so as to give conscientious parents a relatively safe haven for their children”

Stevens, dissenting “not all uses of expletives refer to sexual activity or excrement” (golf game) “It is ironic, to say the least, that while the FCC patrols the airwaves for words that have a tenuous relationship with sex or excrement, commercials broadcast during prime-time hours frequently ask viewers whether they are battling erectile dysfunction or having trouble going to the bathroom

On remand: Fox v. FCC (2d Cir 2010) This court addressed the 1A issue and found the indecency policy to be “impermissibly vague” –“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”” [FAIR NOTICE]

The FCC policy neglects taking “patently offensive” into account –Explicitness/ graphic –Dwells on/ repeats at length –Intent to pander/titillate/shock

The FCC policy is not consistent as applied –F*** and S*** are automatically indecent –The FCC has accepted as NOT indecent “dick” “dickhead” “pissed off” “up yours” “kiss my ass”