Issue 105, Summer 2007

On June 4th, the U.S. Court of Appeals for the Second Circuit ruled in a 2-1 decision in Fox Television Stations v. FCC that the Federal Communications Commission’s rule banning “fleeting expletives” was “arbitrary and capricious” in violation of the federal Administrative Procedure Act. The FCC, the court said, had provided no reasoned rationale for its tightening of a previously lenient policy of censoring expletives only when they are pervasive in a radio or TV broadcast.

Warning the FCC not to simply invent new reasons for restricting “indecency” and “profanity” in broadcasting, Judges Rosemary Pooler and Peter Hall opined that the agency’s entire censorship scheme is likely unconstitutional: its standards are too discretionary, and given the pervasiveness of the words “fuck” and “shit” in contemporary society, the FCC would be hard-pressed to demonstrate a “compelling state interest” in censoring them.

In 2004, in the immediate aftermath of the Janet Jackson “wardrobe malfunction” during the Super Bowl half-time show, the FCC reversed its original finding that the rock star Bono’s televised exclamation upon receiving a Golden Globe Award (“this is really, really fucking brilliant”) did not violate its indecency ban. Announcing its new, harsher rule, the commissioners said that any variant of the “f-word” inherently has a sexual connotation. Moreover, it revived its dormant ban on broadcast profanity, and decided that fleeting expletives were profane.

The FCC announced an exception the following year, after Saving Private Ryan was broadcast on television. The agency also said the film’s pervasive cursing was necessary for its artistic message; therefore, it was not indecent or profane. However, in an “Omnibus Order” released in March 2006, the FCC refused to grant the same leniency to Martin Scorsese’s PBS documentary The Blues. The agency condemned as indecent and profane the phrase “Fuck ’em” (uttered by Cher during the 2002 Billboard Music Awards), and a comment by Nicole Richie during the same program the following year: “Have you ever tried to get cow shit out of a Prada purse? It’s not so fucking simple.”

The Court of Appeals found the fleeting expletives rule to be arbitrary and capricious because none of the FCC’s rationales for the rule were consistent or supported by sufficient evidence. The Commission’s argument that listeners should not be subjected to even “the first blow” of a vulgar word was irrational in view of the fact that the agency made exceptions – sometimes but not always – for news broadcasts or films. Likewise, the Commission’s insistence that the words “fuck” and “shit,” and all of their variants, always have a sexual or excretory meaning “defies any common-sense understanding of these words,” according to the court. The judges offered as examples President Bush’s remark to British Prime Minister Tony Blair that the UN should “get Syria to get Hezbollah to stop doing this shit,” and VP Cheney’s widely-reported advice to Senator Patrick Leahy on the floor of the U.S. Senate: ‘Fuck yourself.’

This ruling fully exposes the irrationality, and the excesses, of the FCC’s censorship regime. But it will be a long while yet before we are fully rid of this constitutional anomaly.

This piece is adapted from a summary by writer, activist, and NCAC Board member Marjorie Heins posted on the Free Expression Policy Project Web site.