You might remember that in 2004 the Republican Congress gave a willing Bush administration FCC the power to fine TV stations for individual indecent “fleeting expletives” — profanities that get out on the airwaves before they can be bleeped.
Fox was fined for Cher dropping the f-bomb during the 2002 Billboard Music Awards, and NBC for Bono doing the same at the 2003 Golden Globes. Janet Jackson’s 2004 Super Bowl “wardrobe malfunction” could be called a visually fleeting expletive. That resulted in a $550,000 indecency fine for Viacom’s CBS.
The networks went to court and today the 2nd Circuit Court of Appeals sided with the broadcasters. Ars Technica quotes the decision:
“Under the current policy, broadcasters must choose between not airing or censoring controversial programs and risking massive fines or possibly even loss of their licenses, and it is not surprising which option they choose,” the justices declared. “Indeed, there is ample evidence in the record that the FCC’s indecency policy has chilled protected speech.”
And furthermore:
Sex and the magnetic power of sexual attraction are surely among the most predominant themes in the study of humanity since the Trojan War. The digestive system and excretion are also important areas of human attention. By prohibiting all “patently offensive” references to sex, sexual organs, and excretion without giving adequate guidance as to what “patently offensive” means, the FCC effectively chills speech, because broadcasters have no way of knowing what the FCC will find offensive. To place any discussion of these vast topics at the broadcaster’s peril has the effect of promoting wide self-censorship of valuable material which should be completely protected under the First Amendment.
Ars received this opaque response from the FCC, following the ruling. “We’re reviewing the court’s decision in light of our commitment to protect children, empower parents, and uphold the First Amendment,” Commission Chair Julius Genachowski declared.
Read on for some good history and context. The full ruling.
You can find me @jwindish, at my Public Notebook, or email me at joe-AT-joewindish-DOT-com.