The U.S. Court of Appeals for the Second Circuit held that the FCC’s “fleeting expletives” policy is unconstitutionally vague in violation of the First Amendment.The Second Circuit held that the Federal Communications Commission (“FCC”) “fleeting expletives” policy is unconstitutionally vague in violation of the First Amendment. The court held that the rule used by the FCC, which relied on a three-factor analysis to determine whether uses of allegedly indecent language were “patently offensive,” failed to give adequate notice of what conduct would or would not be a violation. The court determined that the policy, in effect since 2004, had in fact chilled protected speech on several occasions.
From 1978 until 2001, the FCC based its rules concerning the use of indecent language on radio and broadcast television on the Supreme Court’s decision in FCC v. Pacifica Foundation, 438 U.S. 726 (1978) (“Pacifica”). Pacifica, a case which arose from comedian George Carlin’s “Filthy Words” monologue, set forth a blanket prohibition on the use of specific words, regardless of context. Citing the need for a more flexible policy for indecency enforcement, the FCC set forth the underlying rule for its “fleeting expletives” policy in its 2001 Industry Guidance. There, the FCC explained that an indecency finding involved two determinations. The first determination is whether the material describes or depicts sexual or excretory organs or activities. The second determination is whether the broadcast is “patently offensive” as measured by contemporary community standards for the broadcast medium. The second, “patently offensive” determination depends on three factors: “(1) the explicitness or graphic nature of the description or depiction, (2) whether the material dwells on or repeats at length, and (3) whether the material appears to pander or is used to titillate, or whether the material appears to have been presented for its shock value.”
After U2 band member Bono uttered an expletive during the live broadcast of the 2003 Golden Globe Awards, the FCC issued an order (the “Golden Globes Order”), which signaled another significant change in the FCC’s indecency enforcement policy. Under the Golden Globes Order, the FCC declared, for the first time, that a single, nonliteral use of an expletive (a so-called “fleeting expletive”) could be actionably indecent. The analysis set forth in the FCC’s 2001 Industry Guidance, combined with the actionability of a single utterance, created the “fleeting expletives” policy. As it eventually developed, the policy also included a blanket prohibition, with limited exceptions, on the use of the words “shit” and “fuck.” At around the same time, the FCC also began interpreting penalty assessments as being on a per-broadcast, rather than a per-program basis, with each licensee accounting for at least one broadcast. Along with Congress’s increase of the maximum indecency fine from $32,500 to $325,000, this change in enforcement policy subjected violators to fines which could easily run into the tens of millions of dollars.
In 2006, the FCC applied the “fleeting expletives” policy to a number of programs, four of which it found indecent in an Omnibus Order. Fox Television Stations, Inc. (“Fox”), CBS Broadcasting Inc., and ABC Inc. filed petitions for review of the Omnibus Order with the Second Circuit. After the FCC voluntarily issued a Remand Order, which reaffirmed its finding of indecency with regard to two programs and reversed or dismissed with respect to the other two, Fox and its fellow petitioners sought review of the Remand Order. In a 2-1 decision, the Second Circuit invalidated the “fleeting expletives” policy as arbitrary and capricious under the Administrative Procedure Act. The Supreme Court granted certiorari and, in a 5-4 decision, reversed the Second Circuit’s decision and remanded, instructing the Second Circuit to consider constitutional challenges to the FCC’s policy not addressed in its first decision.
On remand, the Second Circuit noted in the first part of its discussion that it is “well-established that indecent speech is fully protected by the First Amendment.” The court also observed that, unlike the strict scrutiny which usually applies to content-based restrictions on indecent speech, the Supreme Court has applied something “more akin to intermediate scrutiny” to indecency restrictions in the context of radio and broadcast television. This distinction was set forth most clearly in Pacifica, in which the Court upheld an FCC restriction against George Carlin’s expletive-laced monologue, based upon concerns over the pervasiveness of broadcast media and children’s access to it. In this decision, the Second Circuit criticized the Pacifica framework as outdated in light of the proliferation of new kinds of media, like the internet, which undercuts the pervasiveness justification for the broadcast distinction, and in light of the rise of parental controls technology which effectively does away with the concern over exposure to children.
The court found that the FCC’s “fleeting expletives” policy was impermissibly vague, in part, because in its orders applying the policy, the FCC has not discussed how it has or will apply the three “patently offensive” factors, but rather has merely repeated one or more of the factors. The court reasoned that this gives insufficient notice to broadcasters as to how to avoid violating the policy. The FCC’s policy stands in contrast to the earlier Pacifica rule which, although it was rigid in its prohibition of seven specific words, at least provided clear guidance to broadcasters.
The court further reasoned that vagueness problems arise from the FCC policy’s blanket prohibition on the words “fuck” and “shit” and the two exceptions to that prohibition: the “bona fide news” exception and the artistic necessity exception. The court stated that the FCC has not set forth a clear explanation of when or how either exception would apply. Although the FCC created the exceptions to avoid First Amendment issues that would have arisen as a result of a complete ban on the offending words, the high level of discretion that the FCC wields in deciding when either exception applies gives rise to its own set of constitutional problems. As the court observed, the FCC’s indiscernible standards create “the risk that such standards will be enforced in a discriminatory manner.” As evidence of the risk of such discrimination, the court cited the fact that the FCC approved the repeated use of “fuck” and “shit” in the fictional film Saving Private Ryan while refusing to apply either exception to the words’ use in the documentary film The Blues.
Concluding its vagueness analysis, the court found that the FCC “fleeting expletives” policy did have a chilling effect on protected speech. The court cited numerous events as evidence of this chilling, including: (1) the refusal of several CBS affiliates to air a documentary about the September 11th attacks which included audio footage with expletives; (2) Fox’s decision to air the 2003 Billboard Music Awards with an expensive audio delay; and (3) Fox’s decision to not re-broadcast an episode of “That 70s Show” which dealt with masturbation. Citing these and other examples, the court concluded that the FCC’s prohibiting “patently offensive” words or phrases without giving adequate guidance as to what “patently offensive” means has the effect of “promoting wide self-censorship of valuable material which should be completely protected under the First Amendment.” So concluding, the court held that the FCC’s policy is unconstitutionally vague.