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2nd Circuit takes up broadcast-indecency case

By The Associated Press
12.20.06

WASHINGTON — A federal appeals court in New York is to hear arguments today over whether the government's decisions on what constitutes indecent speech violates the First Amendment rights of broadcasters.

Lawyers and constitutional experts say the case stands a chance of eventually making it to the U.S. Supreme Court, which would be the first time that a broadcast indecency dispute has gone that far in nearly three decades.

Broadcasters will argue before the 2nd U.S. Circuit Court of Appeals that the Federal Communications Commission has instituted a new, inconsistent and unconstitutional enforcement regime for how it decides whether profanity uttered on broadcast stations are permissible.

The FCC will argue that it has acted within its statutory authority, and that existing community standards for broadcasting "simply do not permit entertainers gratuitously to utter the F-word and the S-word" in awards shows broadcast when children might be watching.

Last April, Fox Television Stations Inc., CBS Broadcasting Inc. and others asked the appeals court to invalidate the FCC's conclusion that profanity-laced broadcasts on four different shows were indecent, even though no fines were issued.

The FCC asked the court for a chance to re-examine its ruling, and dropped its claim against episodes of the ABC police drama "NYPD Blue" on technical grounds as well as its determination that a broadcast of CBS' "Early Show" was indecent because it was considered "news programming."

But the agency held its ground on two awards shows, both broadcast on Fox:

  • A Dec. 9, 2002, broadcast of the Billboard Music Awards in which singer Cher used the phrase, "F--- 'em."
  • A Dec. 10, 2003, Billboard awards show in which reality show star Nicole Richie said: "Have you ever tried to get cow s--- out of a Prada purse? It's not so f------ simple."

The root of the controversy can be traced to a January 2003 broadcast of the Golden Globes awards show by NBC where U2 lead singer Bono uttered the phrase "f------ brilliant."

In the Bono case, the agency's enforcement bureau said because the singer was not describing "sexual or excretory organs or activities" but was using the word as an "adjective or expletive to emphasize an exclamation" and because the use was fleeting, it was not indecent.

But in March 2004, the agency reversed course, saying the "F-word" in any context "inherently has a sexual connotation."

NBC, joined by the other major broadcasters, asked the FCC to reconsider the Golden Globes ruling, but the agency has not acted on the petition in more than two years.

In the interim, the FCC issued its decision on the shows that are now at the center of the current case.

David Solomon, now a private attorney, was chief of the FCC's enforcement bureau from November 1999 to May 2005, and oversaw indecency enforcement during that period.

He says this case is "very important," and agrees with broadcasters that the agency has expanded the scope of its indecency definition. "I think there's a significant likelihood that the FCC will lose," he said.

If the government loses its case, the appeals court will likely remand the dispute to the agency and ask it to rewrite its rules. If the government wins, it gives "court approval for the significant expansion of their approach to indecency enforcement," Solomon said.

A loss by the broadcasters would almost certainly result in an appeal to the Supreme Court. For the government, a loss might mean an eventual appeal, but it would be a longer road to get there.

Arguments are scheduled for this morning and are expected last about an hour.


Update
Appeals judges grill FCC lawyer over profanity rules
Government attorney surprised some when he said news programs could broadcast yesterday's profanity-laced hearing without penalty. 12.21.06

Previous
FCC drops 2, keeps 2 obscenity charges against TV shows
Fox spokesman says decision 'highlights our concern about the government's inability to issue consistent, reasoned decisions in highly sensitive First Amendment cases.' 11.07.06

Related

PBS chief calls indecency rules unclear, 'paralyzing'

Paula Kerger says FCC regulations, fines put public TV stations at risk, threaten to deprive viewers of important programs. 07.29.06

2nd Circuit halts enforcement of tougher FCC indecency rules
Court also grants commission's request for additional two months to review its finding that 'NYPD Blue,' three other TV shows violated indecency guidelines. 09.08.06

Censorship in the name of decency?
By Gene Policinski As some CBS affiliates hesitate to air a 9/11 documentary because of firefighters' foul language, we must ask should we block free and open discussion because the reality of that day's events may offend some? 09.05.06

Politics of TV violence returns to center stage: FCC’s TV-violence report
By Marjorie Heins Commissioners make useful suggestions about à la carte option for cable subscribers, but perhaps real agenda is to strong-arm the media industry into more self-censorship. 04.29.07

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