One less reason for KCSM to sing The Blues
‘Vague’ FCC indecency rules >
erratic fines > unconstitutional
There may be relief in sight for broadcasters who’ve risked airing naughty words like “dickhead” after the FCC began levying huge fines for variations of the f-word and the s-word.
A federal appeals court this month rejected the indecency crackdown that the commission began in 2004. The court found that rules enforced by the FCC were “unconstitutionally vague” and had created a chilling effect far beyond its restrictions on the “fleeting expletives” in question.
The ruling, obtained by an appeal by major TV broadcasters, vacates the guidelines adopted by the commission six years ago after U2 band leader Bono used the phrase “fucking brilliant” during a live broadcast of the 2003 Golden Globe Awards.
The U.S. Court of Appeals for the 2nd Circuit in New York City examined how the FCC had handled several profanity cases, including its 2006 decision to fine pubTV station KCSM in San Mateo, Calif., and found too many inconsistencies among them.
“There is little rhyme or reason to these decisions, and broadcasters are left to guess whether an expletive is ‘integral’ to a program or whether the FCC will consider a particular broadcast a bona fide news interview,” wrote Judge Rosemary Pooler for the three-judge panel.
The court pointedly contrasted the FCC’s fines for on-air cussing by real-life civilians in nonfiction programs such as PBS’s The Blues with its refusal to enforce rules on a stream of profanities from fictional soldiers in ABC’s presentation of the war movie Saving Private Ryan.
KCSM was fined $15,000 for airing swear words of blues musicians in an 8 p.m. broadcast of The Blues, a PBS documentary series.
Judge Pooler also pointed to FCC decisions on curse words in realistic crime dramas such NYPD Blue and questioned why “bullshit” was deemed patently offensive but the expletives “dickhead,” “pissed off” and “up yours” were not. “The English language is rife with creative ways of depicting sexual or excretory organs or activities, and even if the FCC were able to provide a complete list of such expressions, new offensive and indecent words are invented every day,” she wrote.
The indecency policy “may maximize the amount of speech that the FCC can prohibit, but it results in a standard that even the FCC cannot articulate or apply consistently,” the court ruled. “With the FCC’s indiscernible standards come the risk that such standards will be enforced in a discriminatory manner.” The court found no evidence that the FCC is using the policy to suppress particular points of view, but said the commission violated the First Amendment by considering context to excuse profanity in some cases (such as Saving Private Ryan) and not others (The Blues).
“The FCC assures us that it will ‘bend over backwards’ to protect editorial judgment, at least in the news context, but such assurances are not sufficient given the record before us,” Judge Pooler wrote. “Instead, the FCC should bend over backwards to create a standard that gives broadcasters the notice that is required by the First Amendment.”
Although the ruling is a victory for broadcasters, its immediate impact will be limited. The commission has yet to say whether it will appeal the decision or attempt to revise its policy to pass constitutional muster.
Media attorneys predicted that a forthcoming ruling in a better known case — the one involving Janet Jackson’s “wardrobe malfunction” during the 2004 Super Bowl — will influence how the commission proceeds. The 3rd circuit court in Philadelphia is expected to decide that case soon.
This month’s ruling on fleeting expletives applies only to stations within 2nd circuit’s region — New York, Connecticut and Vermont — but media lawyers are advising public stations to continue with the strict practices they’ve followed since 2004.
“Even victory requires patience,” said attorney John Crigler of Garvey Schubert Barer, who represents numerous pubcasters. “You need to hold back to the narrowest approach unless you are in New York, Connecticut or Vermont.”
“I think the commission is handcuffed right now in enforcing the policy and is unlikely to bring any actions, but my advice to clients is to continue as usual,” said attorney Larry Miller of Schwartz, Woods & Miller, who represents KCSM.
The ruling ended KCSM’s long stand-off with the FCC. The San Mateo station, which has also suffered severe financial stress, won’t have to pay fines and has had its license renewed, Miller said.
He endorsed Judge Pooler’s remarks about the FCC’s inconsistent treatment of KCSM’s presentation of The Blues and ABC’s broadcast of Saving Private Ryan. The contrast between the FCC dictates revealed that “the emperor had no clothes,” Miller said.
“It’s helpful that they recognized the vague enforcement policy they had led to inconsistent results,” said Jeanne Hopkins, spokeswoman for WGBH, which co-produced The Blues. “We’re pleased with the ruling. It removed the chilling effect [that was present] every time we made an editorial decision, trying to balance the editorial integrity of the program with our responsibility to public TV stations, given the possibility of fines.”
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Web page posted Aug. 6, 2010
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