LEGAL VIEW: Is Fox indecent?

Another quiz. What do Cher, Bono, Nicole Richie, NYPD Blue, The Early Show, and Janet Jackson have in common? They inspired the long-running legal drama, entitled Fox Television Stations Inc. v. FCC. The drama appears before the U.S. Supreme Court this term, for the second time in three years.

Back in 2002, during Fox's live broadcast of the Billboard Music Awards, Cher dissed her critics with a "f*** 'em." The next year Bono called his award "f****** brilliant." Richie combined the "S" and "F" words in a two-line joke. During the same period, NYPD Blue and The Early Show used variations of the "S" word. Then all hell broke loose when Jackson experienced her "wardrobe malfunction."

Being a political animal, the Federal Communications Commission duly reacted. In 2004 it declared, for the first time, that the single use of an expletive could be "indecent" and the basis of a large fine, no matter how fleeting.

To the FCC "(t)he 'F-Word' is one of the most vulgar, graphic and explicit descriptions of sexual activity in the English language." The word "inherently has a sexual connotation." The FCC then went after Fox, CBS and ABC.

Federal law prohibits "obscene, indecent or profane" speech on broadcast radio and television, 18 U.S.C. § 1464. Congress charged the FCC with enforcing the ban.

Normally, indecent speech that is not obscene is highly protected by the First Amendment. However, 30 years ago the Supreme Court upheld the ban, in the process watering down the protection of speech on the airwaves. The court justified its decision by observing that, unlike other media, radio and television had a "uniquely pervasive presence in the lives of all Americans" and was "uniquely accessible to children, even those too young to read," FCC v. Pacifica Found., 438 U.S. 726, 748-749 (1978).

Fast forward to 2001. In that year the FCC issued a policy setting forth its indecency standard. To be indecent, material must (1) "describe or depict sexual or excretory organs or activities" and (2) be "patently offensive as measured by contemporary community standards for the broadcast medium." The declaration on the use of fleeting expletives was an interpretation of this policy.

Between 2004 and today the drama has had many scenes -- hearings before the FCC, legal challenges, appeals and one Supreme Court decision holding that the policy and the declaration did not violate the Administrative Procedure Act. Along the way, the FCC dropped CBS and ABC from the drama, leaving Fox ironically to defend Cher's, Bono's and Richie's choice of words.

Last year, the Second Circuit ruled the FCC's policy on indecency to be vague and a violation of the Fourth Amendment, Fox Television Stations, Inc. v. FCC, 613 F.3d 317 (2nd Cir. 2010).

A law or regulation must "give the person of ordinary intelligence opportunity to know what is prohibited." The notice enables the person "to steer between lawful and unlawful conduct." It also prevents the delegation of "basic policy matters to (government officials) for resolution on an ad hoc and subjective basis," Grayned v. City of Rockford, 408 U.S. 104, 109-109 (1972).

Normally a court determines whether a law gives adequate notice by examining the text of the law. The Second Circuit did not do this. Instead, it looked at the many enforcement actions of the FCC against indecent speech since 2004 and found them to be inconsistent. It also cited the cautionary behavior of broadcasters.

A better solution to the mess of FCC enforcement actions against indecent speech is simply not to bring them.

Unlike 1978, today we have many ways to receive and transmit information across the airwaves besides radio and television -- the Internet, Facebook, Twitter, etc. Even within the radio and television industries, there are many more competitors than existed in 1978.

What was uniquely pervasive is no longer so. We also have technology in the form of V-chips, which give parents the ability to block programs.

The Second Circuit wanted to declare the indecency law adopted by Congress unconstitutional but felt constrained by Pacifica. A diverse group of media, arts and advocacy organizations, led by the ACLU, is pursuing this goal in an amicus brief. Based on comments he wrote in the previous Supreme Court decision, Justice Clarence Thomas is sympathetic.

Getting the Supreme Court to address the constitutional issues may be difficult. Instead, the court may remand the case to the Second Circuit for the latter court to decide whether the FCC's fleeting expletive declaration was authorized by the agency's policy and the statute.

If not, end of drama. If yes, back to the Supreme Court for a third act.

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Scott Forsyth is a partner in Forsyth & Forsyth and serves as counsel to a local chapter of the ACLU in New York. He may be contacted at (585) 262-3400 or scott@forsythlawfirm.com.

Published: Thu, Nov 17, 2011