Big news for broadcasters today, as the United States Court of Appeals for the Second Circuit issued a decision striking down the FCC’s indecency policy. According to the decision, the “FCC’s current policy fails constitutional scrutiny,” in large part because it is too vague and can lead broadcasters to shy away from airing programming, effectively diminishing First Amendment rights to free speech.
The ruling comes in response to changes in both definition and enforcement of the FCC’s indecency policy over the years. In 2001 the FCC clarified its position on indecency, stating that indecent material “describe[s] or depict[s] sexual or excretory organs or activities” and would be considered “patently offensive as measured by contemporary community standards for the broadcast medium.” At the time the FCC also stated it would not take action against “fleeting and isolated” instances of swearing over the broadcast airwaves. But that policy changed after some high profile incidents during television broadcasts, such as the infamous Janet Jackson/Justin Timberlake breast exposure during the Superbowl and various unbleeped celebrity pottymouth moments during live television awards shows like the Golden Globes.
Since that time, broadcasters have complained that the FCC’s rules have been unevenly enforced and that it’s been difficult to predict what actions or utterances will lead to fines.
In light of all of this, today’s decision states:
“…the absence of reliable guidance in the FCC’s standards chills a vast amount of protected speech dealing with some of the most important and universal themes in art and literature.
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.”
Wow. This ruling is great news for both broadcasters and artists in its support for First Amendment rights and artistic freedom.