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Indecenc y

Indecenc y. Fleeting Expletives and Fleeting Nudity. Richard M. Goehler. Back g round. The FCC's Indecency Policy. The FCC’s Indecency Policy. In order to fully understand the significance of the FCC’s current policy, we must first revisit the U.S. Supreme Court’s

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Indecenc y

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  1. Indecency Fleeting Expletives and Fleeting Nudity Richard M. Goehler

  2. Background The FCC's Indecency Policy

  3. The FCC’s Indecency Policy In order to fully understand the significance of the FCC’s current policy, we must first revisit the U.S. Supreme Court’s decision in the Pacificacase involving George Carlin’s “Filthy Words” monologue. The Court emphasized that its decision in Pacifica was a very narrow holding.

  4. The FCC’s Indecency Policy In 2004, the FCC expressly changed its policy toward fleeting expletives. Specifically, in the Golden Globe Awards case, the FCC for the first time declared that non-literal use of an expletive could be actionably indecent, even if the word was used only once. The FCC stressed that broadcasters failing to institute technological delays could be penalized.

  5. ThePending Litigation

  6. The Pending Litigation FCC v. Fox Television • In 2006, the FCC issued an order reaffirming its “new stance” on fleeting expletives. • The FCC found that the 2002 and 2003 broadcasts of the Music Awards on Fox contained indecent language. • Fox appealed to the U.S. Court of Appeals for the Second Circuit which reversed the decision by the FCC.

  7. The Pending Litigation FCC v. CBS Corp. • At about the same time, the FCC imposed a $550,000 fine against CBS for the 2004 Super Bowl broadcast of the Janet Jackson “wardrobe malfunction.” • The CBS litigation over fleeting nudity ended up in the U.S. Court of Appeals for the Third Circuit which also reversed the decision by the FCC.

  8. The United States Supreme Court Decision inFCC v. Fox

  9. The U.S. Supreme Court Decision April28, 2009 The Court upheld the FCC’s decision to impose liability on broadcast stations for airing “fleeting expletives.” The decision dealt only with the issue raised concerning the Administrative Procedure Act.

  10. S.Ct. Decision – FCC v. Fox The Court’s majority opinion did acknowledge that whether the FCC’s current policy is unconstitutional will likely be determined at a later date.

  11. S.Ct. Decision – FCC v. Fox The Court remanded the case to the Second Circuit to consider whether the FCC’s enforcement policy violates the First Amendment or is otherwise invalid.

  12. The Supreme Court Within weeks of its decision in the Fox case, the Supreme Court ordered the Third Circuit to reexamine its decision in favor of CBS in the “wardrobe malfunction” case.

  13. Constitutionality of the FCC’s Position Still in Question

  14. Constitutionality Still in Question Since the Supreme Court’s decision in April,Fox has filed a brief in the Second Circuit,arguing that the Appeals Court should now take up the constitutional question. The FCC,on the other hand, has asserted that the current indecency regulation is still necessary to insure that parents can construct a relative safe haven for their children.

  15. Constitutionality Still in Question In the CBS case in the Third Circuit, the FCC has filed a supplemental brief reasserting that the broadcast was indecent and saying that the evidence is strong that CBS could have used a delay.

  16. So, what does all this mean for now? The FCC’s fleeting expletives policy is“the law”for now. Stations would be well advised to install and use delay equipment.

  17. Questions? This presentation has been recorded. To view it or download slides, go to www.aaf.org/fromthesource Richard M. Goehler

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