It was good to see a federal appeals court throw out the Federal Communications Commission’s rules on broadcasting profanity. And no, this doesn’t mean everybody on network television will suddenly lace their language with Blagojevich-like blue words.
The FCC in 2004 banned profane speech on broadcast radio and TV, including “fleeting expletives,” such as Irish pop singer Bono’s cheerful declaration at the Golden Globe awards that winning was “(expletive) brilliant.”
After the rules went into effect, and the FCC starting stinging broadcasters with fines, the networks had to take steps to protect themselves. This turned ridiculous. Live coverage of ex-football star Pat Tillman’s funeral was halted after speakers used some rough language. A documentary on New York firefighters and Sept. 11 was canceled. The movie “Saving Private Ryan” made it on air, but a program about blues music didn’t.
The FCC wouldn’t acknowledge that its policy was chilling speech on television, but the Second Circuit Court of Appeals in New York has. It ruled that the policy was vague and a violation of the First Amendment. The court said — are you ready now — that people are going to talk about sex, “surely among the most predominant themes in the study of humanity since the Trojan War.”
The FCC is likely to appeal this ruling to the U.S. Supreme Court. The high court last year on a 5-4 vote reversed an opinion from the Second Circuit that targeted the FCC policy. But that case was decided on relatively narrow grounds. The high court did not rule on whether the FCC policy infringed on constitutionally protected speech. So there’s hope the Supreme Court will look more favorably on this latest ruling.
We urge FCC Chairman Julius Genachowski and the other commissioners to live with the decision of the Second Circuit. Take this no further in the courts. You are on the wrong side of the fundamental right to free speech.
And your policy is virtually useless. It applies only to broadcast television. Yet almost nine of 10 American households subscribe to cable or satellite TV. Cable and satellite stations don’t have to follow FCC rules. It applies only to broadcast stations — but most people see them in the lineup right next to the cable stations. So in real-world living rooms, there’s no distinction.
Most television outlets set their own, reasonable standards, recognizing that viewers don’t want to be assaulted by profanity. Beyond that, V-chip and digital technology make it a snap to block programs that are objectionable, though few households take advantage of that.
The FCC should stand down. Time to move on to other business.
