By Kathleen A. Kirby, Partner, Wiley Rein LLP
You probably saw the headlines last week when, in the so-called fleeting expletives case, the United States Court of Appeals for the Second Circuit declared the FCC’s indecency policy “unconstitutionally vague.” What does it mean for broadcast newsrooms?
First, a bit of background. During the 2003 Golden Globes telecast, U2 leader Bono took the stage to accept an award and exclaimed, “this is really, really f---ing brilliant.” Certain viewers complained, and the Federal Communications Commission’s (“FCC”) Enforcement Bureau, consistent with the agency’s restrained indecency enforcement approach and precedent, said the fleeting and isolated use of the word was not indecent. A political firestorm erupted. On appeal to the full Commission, the Enforcement Bureau’s decision and all similar prior decisions were overturned, and the FCC headed down the road of declaring that the single, nonliteral use of an expletive could be actionably indecent. In fact, broadcast of the “F-word” and the “S-word” on television under almost any circumstances would violate FCC rules. That, coupled with Congressional action increasing the maximum fine permitted for a single utterance from $32,500 to $325,000, had newsrooms buzzing.
Recognizing the inevitable chilling effect on news coverage the FCC’s new enforcement stance would have, RTDNA urged the FCC to reconsider the policy. We wrote then: “RTNDA members are being forced to rethink entirely how they present local and national news. In the past, the FCC wisely recognized that “in some cases, public events likely to produce offensive speech are covered live, and there is no opportunity for journalistic editing.”
In those instances, the Commission stated that it would be” inequitable to hold a licensee responsible for indecent language.” Now, the Commission appears to have retreated entirely from that position. The Golden Globes Order, combined with the specter of enterprise-threatening fines and license revocation, will make broadcasters hesitant to use audio and video actualities of angry political demonstrations, and even structured political debate, interviews and conversations.
Given the risk that certain “offensive” language might be heard on the battlefield, had the Commission issued the Golden Globe Order a year ago, it is questionable whether we would have seen the compelling live reports of journalists embedded with U.S. troops in Iraq. Broadcast journalists will be hesitant to cover those persons who, for whatever reason, may publicly use language that the Commission may consider to be indecent or now, “profane.” And we may no longer hear live audio or see live footage from coverage of an arraignment or trial, an emotionally charged demonstration, a locker room interview, or the scene of breaking news such as a disaster or terrorist attack.”
While petitions for reconsideration of the Golden Globes Order were pending, the FCC found four more programs indecent under its new standard. Cher had dropped the “F-bomb”on the 2002 Billboard Music Awards, Nicole Ritchie let loose with both the “F” and “S-words” on the same show the following year.
A Survivor contestant used the phrase “bullsh---er” on CBS’s The Early Show, and “bullsh—“ was heard on NYPD Blue. Ultimately, the complaint against NYPD Blue was dismissed on procedural grounds, and the FCC reversed its finding with respect to The Early Show because it occurred during a news interview. At the same time, however, the FCC said, “there is no outright news exemption from our indecency rules.” Clear as mud. The sanctions against Cher and Nicole Ritchie’s unfortunate utterances held, and so, the networks and several affiliates headed to court.
Initially, the Second Circuit struck down the indecency policy on procedural grounds, indicating that the FCC had failed to explain why it had changed its three decade old policy on fleeting expletives. The FCC appealed to the U.S. Supreme Court, which reversed the appellate court’s decision, finding that the FCC “could reasonably conclude that the pervasiveness of foul language, and the coarsening of public entertainment in other media such as cable, justify more stringent regulation of broadcast programs so as to give conscientious parents a relatively safe haven for their children.” The Supreme Court declined to address whether the indecency policy violates the First Amendment, however, and sent the case back to the Second Circuit to take a look at the constitutional arguments.
And so, we arrive at last week’s decision, in which the Second Circuit held that the “FCC’s policy violates the First Amendment because it is unconstitutionally vague, creating a chilling effect that goes far beyond the fleeting expletives at issue here.” Essentially, the court said that the FCC’s indecency policy provides no discernible standard by which broadcasters can accurately predict which speech is prohibited. In support of its reasoning, the court pointed to The Early Show example. The FCC “found the use of the word ‘bullsh---er’ to be ‘shocking and gratuitous’ because it occurred ‘during a morning television interview,” the court said, “before reversing itself because the broadcast was a “bona fide news interview.” “In other words, the FCC reached diametrically opposite conclusions at different stages of the proceedings for precisely the same reason – that the word was uttered during a news program.”
Certainly, the court was concerned that the indecency standards could be enforced in a discriminatory manner. It pointed out the FCC’s disparate treatment of “Saving Private Ryan” (which was not actionably indecent” and the documentary, “The Blues.” The court questioned how “fleeting expletives could be more essential to the ‘realism’ of a fictional movie than to the ‘realism’ of interviews with real people about real life events.”
The court recognized in no uncertain terms what RTNDA had argued to the FCC – that the chilling effect extends to news and public affairs programming. “If the FCC’s policy is allowed to remain in place, there will undoubtedly be countless other situations where broadcasters will . . . decline to pursue contentious people or subjects, or will eschew live programming altogether, in order to avoid the FCC’s fines. This chill reaches speech at the heart of the First Amendment.”
So where do we go from here?
To be sure, newsrooms can rest more easily about expletives that may occur in live coverage. It appears likely that the FCC will appeal the decision to the Supreme Court. With a reported backlog of more than 1 million indecency complaints and an appellate court opinion written in such a way that it undermines the FCC’s definition of indecent programming itself, it would be both legally and politically difficult for the FCC to go back to the drawing board. Former FCC-Chairman Michael Powell, under whose watch the Bono brouhaha started, said in an Op-ed piece in the New York Times this week that the Second Circuit was right to strike down the policy, and “it is time now for the Supreme Court to revisit its half-century old decision that broadcasting alone is undeserving of full First Amendment protection.”
In my opinion, it is not out of the question to think that the Supreme Court could overrule its previous decision in Pacifica and subject speech restrictions in the broadcast context to the same level of scrutiny applicable to every other medium.
Stay tuned.
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Question of the Week - May 18, 2012