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Tuesday, July 13, 2010

Second Circuit strikes down FCC expletive policy

Opinion here; analysis here. Some thoughts:

First, the court spends a few pages of dicta explaining why the foundations of Pacifica no longer hold sway--broadcast television no longer is a "uniquely pervasive" presence in a media landscape that "would have been unrecognizable in 1978." Broadcasting is certainly no more pervasive than cable or the internet, both of which receive full protection. In other words, the entire justification for the different treatment of broadcast, if it ever was true, no longer is. After all that, however, the court insisted that it remained bound by Pacifica until the Supreme Court overturns its own precedent. If the parties and the Court are looking for a blueprint for doing so, the opinion provides it.

The court held that the FCC's policy is unconstitutionally vague, with much of the vagueness coming from uneven enforcement. Thus, the FCC found that "bullshit" was indecent but "dickhead" was not, but the Commissions's only explanation for the difference was that bullshit was "vulgar, graphic and explicit,” while dickhead was not vulgar, graphic and explicit, without further explanation. The court also was troubled by the inconsistent application of the exceptions for "bona fide news" and "artistic necessity." For example, fuck and shit were found "integral to the 'realism and immediacy of the film experience for viewers'" of Saving Private Ryan, but not of a documentary on The Blues. And the court suggested the differential treatment might have something to do with differences between a "mainstream movie with a familiar cultural milieu" and a show that "largely profiled an outsider genre of musical experience." In other words, it reflects the risk that the policy will be enforced to suppress particular events or points of view.

Finally, the court spent several pages describing the chilling effect the indecency policy has on broadcasters, including decisions by some stations to no longer cover live events, decisions by broadcasters to steer clear not only of words but of themes and idea, and (interestingly) the cost to broadcasters of moving to time-delay (Fox estimates $ 16 million a year). Of course, this chilling effect likes has been there since Pacifica upheld the idea of a prohibition on indecent speech in broadcasting. But what has changed since 2004 is the FCC's dramatically ramped-up enforcement. Enforcement has increased in terms of how much the FCC pursues (enforcement activity has increased in the past decade, particularly against television stations), what it pursues (so-called "fleeting expletives" are now within the policy, not just the "verbal shock treatment" the Court saw in Pacifica), and how it pursues it (fines are not per-program, but per-licensee broadcast of a single program, increasing the recoverable fines).

Having read the decision, I would be shocked, shocked if SCOTUS does not take this case. The Second Circuit struck down a federal agency's enforcement scheme and showed the present defects in a Supreme Court precedent; I do not know how the Court could not take this. I would note the irony of the Court taking this case the year after Justice Stevens left the Court and denying him the opportunity (not that I know if he ever wanted the opportunity) to undo his biggest First Amendment mistake. Of course, assuming Justice Stevens never did change his mind about Pacifica, we may be better off with Justice Kagan, who seems to have more of a First Amendment-absolutist streak.

Posted by Howard Wasserman on July 13, 2010 at 09:01 PM in Constitutional thoughts, Current Affairs, Howard Wasserman, Law and Politics | Permalink

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Wherever he is, George Carlin surely has a smile on his face.

Posted by: Shag from Brookline | Jul 14, 2010 6:14:03 AM

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