You No Decency?
sitting around Tuesday afternoon, thinking I had nothing to
write about, I was alerted to a court decision just handed
down by the Second Circuit Court of Appeals declaring the
FCC’s punishment of television networks for broadcasting “fleeting
expletives” unconstitutional. I’m like, “Huh? Haven’t we been
Well, yes we have—sort of. This is a case that’s been bouncing
around the upper levels of our court system for a couple years,
and we’ve talked about it here a couple of times. I’ve got
a feeling this won’t be the last time, either.
The case involves George W. Bush’s attempt to turn the FCC
into a Christianista strike force, to placate religious extremists,
like James Dobson’s Focus on the Family, by trying to cleanse
the airwaves of anything remotely un-Christian. As part of
this crusade, the FCC dramatically raised penalties and started
going after networks and individual stations that aired any
“dirty words,” in ways they had never done before. In 2003,
the FCC issued around $400,000 in fines; in 2004, the FCC
issued over $8 million in fines.
The FCC’s wrath in this case was leveled at a Cher “fuck ‘em,”
a Bono “fucking brilliant,” a Nicole Ritchie “cowshit,” a
NYPD Blue “bullshit,” and an Early Show “bullshitter.”
These things all happened in 2002 and 2003.
Yes, we’ve seen this case before. The Second Circuit already
determined in 2007, in a thorough and delightfully snarky
decision, that the FCC had acted arbitrarily in suddenly changing
its standards for indecency, and therefore was in violation
of the Administrative Procedure Act, a federal law that governs
how agencies like the FCC operate. The Second Circuit didn’t
look at the constitutional dimensions of the FCC’s behavior
because it didn’t have to. There’s an axiom in the courts
that a constitutional question should always be avoided if
a case can be decided on some other basis, and that’s what
the court did. So the 2007 ruling goes to the Supreme Court,
which “ruled” (if you call a 5-4 decision with seven
separate opinions something resembling ruling) that the FCC
wasn’t arbitrary at all. Or something. The plurality decision,
authored by Justice Antonin Scalia, essentially abdicated
a big part of the Supreme Court’s responsibility to be a check
and balance on the executive branch, at least as far as the
regulation of individual speech goes.
In any event, whether or not the FCC acted constitutionally
was still up in the air, and that question came back to the
Court of Appeals, which ruled this week that the “standards”
now applied by the FCC for indecency on broadcast TV are unconstitutionally
vague. The 32-page decision is a good read. It’s authored
by Judge Rosemary Pooler, who wrote the wonderful first decision
back in 2007. A good part of it is explaining to Scalia exactly
how he got it so pathetically wrong in the 2009 decision.
It lays down the gauntlet for why the Bush FCC’s actions were
so bumbling, so deplorable, and why the freedom of speech
is so sancrosanct.
Here are some highlights.
The FCC’s current standards are impossibly vague:
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. . . . This
hardly gives broadcasters notice of how the Commission will
apply the factors [regarding indecency] in the future.”
On the basic futility of trying to regulate speech:
observation that people will always find a way to subvert
censorship laws may expose a certain futility in the FCC’s
crusade against indecent speech, but it does not provide a
justification for implementing a vague, indiscernible standard.
If the FCC cannot anticipate what will be considered indecent
under its policy, then it can hardly expect broadcasters to
Pooler’s use of the word “crusade” was revealing, because
what the FCC attempted in the Bush years was just that. The
fundamental point is that when a speech regulation is vague,
speakers will self-censor to an extreme degree to avoid being
penalized, to society’s detriment. The Court provided a bunch
of examples of how this is already happening.
One wonders if Obama’s FCC will take this back up to the Supreme
Court, and if they do, why? The Supreme Court, as presently
constituted, has proven itself incompetent to deal with issues
regarding our fundamental freedoms. Unless, of course, you’re
a corporation or consider carrying a gun around a fundamental