Second Circuit Draws Law Law Land This Much Closer to Cursing Up a Storm

The late George Carlin gave us many words to live by. Parents should never name their child Tucker. Redundancies like “true replica,” “young children” and “added bonus” should never be used. Anyone going slower than you is an idiot, but anyone going faster is a maniac.

Carlin also famously declared that of the roughly 400,000 words in the English language, there are seven words you can never say on television (nor can you write them on the Law Law Land blog). This “Filthy Words” monologue was the basis for a landmark 1978 Supreme Court case, FCC v. Pacifica Foundation, where the high court held in a narrow decision that the FCC had the authority to fine a radio station for playing a 12-minute recording of the monologue.

For many years following the Pacifica decision, the FCC lived by Carlin’s proclamation, limiting its enforcement power to Carlin’s seven dirty words. Broadcasters, knowing exactly which words to avoid, could easily navigate the FCC’s bright line policy. In fact, the FCC did not bring any enforcement actions between 1978 and 1987. Even after 1987, when the FCC changed its focus to the context in which the words are used rather than the presence of specific words, “fleeting expletives” — single, nonliteral uses of an expletive — were largely ignored by the FCC.

This all changed in 2004, after Bono dropped an f-bomb at the 2003 Golden Globes and Janet Jackson had her “wardrobe malfunction” at the 2004 Super Bowl. In response to public outcry from a vocal minority, the FCC toughened its indecency rules, declaring for the first time that fleeting expletives could be actionably indecent. With new beefed-up penalties at its disposal, fines issued by the FCC increased from $440,000 in 2003 to a record $8 million in 2004. When the FCC’s fleeting expletive policy proved to be all too unpredictable, Fox Television and the other major television broadcasters sued the FCC, challenging the constitutionality of the policy in Fox Television v. FCC. And when last we left this issue, that’s where things stood

But in a decision issued just last week, the Second Circuit Court of Appeals in New Yorkstruck down the FCC’s entire indecency policy, ruling that the policy is unconstitutionally vague and creates “a chilling effect that goes far beyond the fleeting expletives at issue” in the case. The opinion is worth reading not only because it might be the first time an appellate court opinion includes the word “Nipplegate” (Westlaw users, feel free to confirm), but also because it presents a sweeping condemnation of the FCC’s current indecency policy.

The court focused on specific instances where the policy’s vagueness led to discriminatory outcomes. The use of certain expletives (let’s just say “fudge” and “shoot”) was permissible in an airing of Saving Private Ryan but not in the documentary The Blues. “Bull–”…um, “plop” was vulgar and impermissible but “dickhead” was not (and as you can see, we are, at least for now, adhering to the FCC’s now-defunct standards). According to the court, this uncertainty led some broadcasters to refuse to air certain shows because of the possibility that they might be subject to stinging FCC fines. Stations refused to air a live broadcast of Pat Tillman’s funeral for fear of unexpected obscenities; others refused to show an award winning 9/11 documentary which contained a handful of expletives. While the FCC argued that a rigid policy limited to Carlin’s seven dirty words allowed broadcasters to get away with creative allusions to indecent subjects, the court found this logic inherently flawed — if the “FCC cannot anticipate what will be considered indecent under its policy, then it can hardly expect broadcasters to do so.” I assume that U2’s Bono found the Second Circuit’s reasoning to be “really, really (freaking?) brilliant.”

The powerful Parents Television Council — you remember them — has urged FCC chairman Julius Genachowski to appeal, so a Supreme Court showdown is likely. Investigating the source of the social conservative movement’s linguistic monopoly on the words “parent,” “family,” or “children,” is, unfortunately, beyond the scope of this post (but seriously, if I linked you right now to an organization called “We Love Families,” wouldn’t you already be able to tell me their mission statement verbatim?). But is all this focus on broadcast television even really necessary?

As the Second Circuit court pointed out, censorship on broadcast television (as opposed to other media) has been more accepted by the courts due to its unique pervasiveness and accessibility to children. However, with V-Chips in almost every TV set, 87% of American households having cable or satellite television, and widely available internet content (including network TV shows), parents are no less capable of protecting their children content on broadcast TV content. But only the Supreme Court can blow up the whole framework, so we’ll have to wait and see if its censorship policy follows YouTube, Twitter and other forms of media into the 21st century — a place where, at least for the time being, the FCC may not be able to follow.

For now, though, the networks have at the very least moved closer to the good ol’ days when Carlin’s seven filthy words were all they had to worry about.

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