2nd Circuit Judges Skeptical of FCC Fleeting Expletive Findings

An observer told us he expects the FCC to lose the case, sent back to the 2nd Circuit last year by the Supreme Court in a 5-4 decision (CD April 29 p2). An attorney during his arguments for some intervenors predicted that the policy will again come before the high court. A Media Bureau spokeswoman declined to comment.

The commission is following the landmark 1978 Pacifica Supreme Court indecency ruling by censuring broadcasters for airing swearwords between 6 a.m. and 10 p.m. even if they're inadvertently uttered, Acting FCC Deputy General Counsel Jacob Lewis told the jurists. V-chips don’t work in such instances because the Billboard shows broadcast on the Fox network in 2002 and 2003 where Cher and Nicole Richie cursed were rated as appropriate for children, he said. “Broadcasters have always been on notice” that the “s-word and the f-word” can be deemed indecent, Lewis said. He and the judges used the actual swear words at times.

“The commission has tried to provide guidance over the years,” Lewis said. There’s “no dispute” that broadcasters are aware of the rules, he said. A TV station that’s unsure if a show will run afoul of FCC rules can air it during the safe-harbor period late at night and early in the morning, he said. Judges indicated they were more concerned about whether Pacifica is being stretched beyond its limit and broadcasters’ speech chilled, as the industry contends, than about inadequate notice provided by the commission. Procedures were debated during earlier oral arguments at the 2nd Circuit, which remanded the case to the regulator on that basis.

How are kids protected from hearing profanity if cursing on the nightly news is okay, Hall asked Lewis. “How are children figuring that out” that there’s a contextual difference between swearing on news versus entertainment programs, he continued. “The parent can say I am not going to allow my child to watch the news programming,” Lewis replied. Asked by Leval why “doesn’t the V-chip do this,” Lewis responded the commission has found them “ineffective.”

Pooler was skeptical the commission will, in Lewis’s words, “bend over backwards” to give industry the benefit of the doubt when it comes to news and programming that couldn’t be reasonably delayed by a small broadcaster. “You make a policy characterization of the FCC bending over backwards?” she said. “Which, by the way, is a funny image.” The news exemption isn’t “particularly vague,” Lewis replied. Hall later said: “The broadcasters are not sure where the line is.”

Of George Carlin’s “Seven Dirty Words” that was the subject of the Pacifica ruling, Leval said there’s “a big difference between that and a passive remark that someone is a bullshitter. Those are very different things,” he told Carter Philips, the attorney representing Fox. Philips agreed. “Today the words are shit and fuck,” he answered. “Who knows what they will be tomorrow … of course, the commission changes” members. “Nothing that has happened in the 30-plus years since Pacifica has been decided should move any court to expand the commission’s authority,” he said. Pooler asked whether, “if fleeting expletives are allowed, we will be inundated by fleeting expletives all the time? … Has that happened since Pacifica?” No, said Carter.

FCC indecency policy is likely to go before the high court again, predicted attorney Miguel Estrada, representing NBCU, intervening on the side of the plaintiff. Media Access Project President Andrew Schwartzman, representing two artists’ groups on Fox’s side, thinks the court will find in favor of the broadcaster, he told us. “It’s clear that the only question is how they're going to rule it’s unconstitutional.”