FCC Loss a Huge Victory for Free Expression Groups

On June 4, the U.S. Court of Appeals for the Second Circuit rejected the Federal Communications Commission's new rule that bans "fleeting expletives" that occur occasionally on broadcast television. The FCC had contended that all expletives implied sexual or excretory acts and therefore could be banned, but the court declared that these words are often used to express frustration and excitement -- meaning a blanket ban on the words violated the First Amendment.

"This is an important decision at a time when the FCC is trying to aggressively expand its power to censor both broadcast and cable TV," said Chris Finan, president of the American Booksellers Foundation for Free Expression (ABFFE). "It should see the ruling as a warning shot, but we are not optimistic. The FCC has just asked Congress to give it the authority to regulate violence in TV programming."

Last November, ABFFE joined a coalition of 20 free expression groups, community broadcasters, filmmakers, performers, and authors to file a brief arguing that new standards adopted by the commission to censor "indecency" on the airwaves are overly vague and unconstitutional.

In March 2006, the FCC declared that only "in rare contexts" will "language that is presumptively profane" be permitted in radio and TV broadcasts and condemned dozens of programs containing coarse language or sexual situations. One of the condemned programs was a PBS documentary by Martin Scorsese that explored the history of American blues and included interviews with people who used the words "shit" and "fuck." The FCC stated, "We disagree that the use of such language was necessary to express any particular viewpoint." The television networks have challenged the new standards in court.

The amicus brief joined by ABFFE argued that the new FCC standards, coupled with the threat of fines of up to $325,000 that were authorized by Congress this year, would have a chilling affect on free speech on TV and radio, particularly on nonprofit broadcasters who do not have the resources to challenge fines in court. The brief noted that public radio stations have already "bleeped" words from documentaries about the 9/11 attacks and the Iraq War. Rocky Mountain PBS canceled the historical documentary Marie Antoinette because it included sexually suggestive engravings.

In its recent decision, the appeals court called the FCC's expletives rule "arbitrary and capricious because none of the FCC's rationales for the rule made any sense or were supported by evidence," as reported on the Free Expression Policy Project website. The court pointed out that, though the FCC contended that viewers should not have to hear expletives, it sometimes made exceptions for news broadcasts or films, such as Saving Private Ryan. The court also noted that the FCC's contention that "fuck" and "shit" have only sexual or excretory meaning "defies any common-sense understanding of these words."

According to the New York Times, Kevin Martin, the FCC chairman, said the agency is contemplating whether or not to request a rehearing by all the judges of the Second Circuit or taking the issue directly to the Supreme Court.