U.S. Court Rules Punishment for Accidentally Aired Expletives Is Invalid

June 5, 2007

Earlier today the 2nd U.S. Circuit Court Of Appeals found that a new Federal Communications Commission policy penalizing accidentally aired expletives was invalid, saying it was “arbitrary and capricious” and might not survive First Amendment scrutiny.

In a 2-1 ruling, it found in favor of a Fox Television-led challenge to the policy and returned the case to the FCC to let the agency try to provide a “reasoned analysis” for its new approach to indecency and profanity. It added it was doubtful the FCC could do so.

The broadcasters had asked the appeals court last year to invalidate the FCC’s conclusion that profanity-laced broadcasts on four shows were indecent, even though no fines were issued.

The new policy was enacted after a January 2003 broadcast of the Golden Globes awards show by NBC when U2 lead singer Bono uttered the phrase “f------ brilliant.” The FCC said the “F-word” in any context “inherently has a sexual connotation” and can trigger enforcement.

Monday’s ruling favored Fox’s challenge to the FCC’s finding of indecency in regards to a Dec. 9, 2002, broadcast of the Billboard Music Awards in which singer Cher used the phrase “F--- ’em” and 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 proliferation of satellite and cable television channels — not to mention Internet-based video outlets — has begun to erode the ’uniqueness’ of broadcast media, while at the same time, blocking technologies such as the V-chip have empowered viewers to make their own choices about what they do, and do not, want to see on television,” the appeals court wrote.

In a dissent, Judge Pierre Leval said the FCC had given a “sensible, although not necessarily compelling, reason” for its new policy.

He noted that the FCC had concluded that the F-word “is of such graphic explicitness in inevitable reference to sexual activity that absence of repetition does not save it from violating the standard of decency.”