Second Circuit Strikes Down FCC’s Indecency Rules

Few people could have imagined that Bono’s utterance of a single expletive during a 2003 awards show would have such a massive impact seven years later. Today, in Fox v. FCC, the Second Circuit Court of Appeals held that the FCC’s unclear rules regarding fleeting vulgar language are unconstitutional. From the Wall Street Journal, the court said that:

…the FCC's indecency policies were "unconstitutionally vague, creating a chilling effect that goes far beyond the fleeting expletives at issue here."

The 32-page ruling was laced with many of the words FCC policy said broadcasters could not allow to be spoken on air. It sets up the possibility that the Supreme Court could be asked to revisit rulings that have formed the basis for government curbs on "indecent" broadcast speech, including a 1978 decision that allowed the FCC to fine the Pacifica Foundation for broadcasting a monologue on dirty words by the late comedian George Carlin.

This decision will almost certainly lead to an appeal, but it remains unclear to what extent the Obama administration will fight it. Keep in mind that the current FCC regulations date back to George W. Bush’s time in the White House. In any case, today’s decision signals that the FCC cannot broadly punish broadcasters for airing expletives, absent clear guidelines. And as the court stated, all TVs 13 inches or larger sold in the United States come with V-chips, allowing parents to choose what their children can and cannot watch, further weakening the rationale for the FCC’s regulations.

PFAW