As expected, the FCC's decisions regulating so-called "indecency" on television were tossed out by a U.S. Court of Appeals today on the grounds that they were far too "arbitrary and capricious" to be lawful. The decisions involved Bono, Cher, and Nicole Ritchie each using what the lawyers call "fleeting expletives," namely the "f - " and "s - " words, on live broadcasts of music awards shows.
Along with many other parties, the Center for Creative Voices in Media told the court that these overly broad and arbitrary Commission decisions put creative, challenging, controversial, non-homogenized broadcast television programming at risk. In many cases, the very kinds of television programs that parents want their children to watch -- high quality documentaries, histories, and dramas -- were bleeped, re-edited, delayed, or dropped entirely. Thus, the chilling effect of these now-overturned Commission decisions harmed not only media artists, but the American public. We documented this chilling effect in our report filed with the court, Big Chill: How the FCC's Indecency Decisions Stifle Free Expression, Threaten Quality Television, and Harm America's Children. We're pleased, but not surprised, that the court agreed.
Last April, the FCC told Congress that it could give the Commission new powers to regulate so-called "violent" broadcast television content, however that might ultimately be defined. In light of today's clear Court of Appeals ruling that the FCC has abused its discretion to regulate television content, and acted "arbitrarily and capriciously," it would be extremely unwise -- even irresponsible -- for Congress to now grant these exponentially expanded new powers to the Commission.
"Cleaning up TV" has been one of the centerpieces of FCC Chairman Kevin J. Martin's tenure as FCC Chairman. Perhaps seeing those efforts get so thoroughly smacked down by the Court of Appeals caused Martin to melt down. In his press statement, he swears more than Bono, Cher, Nicole Ritchie, and President Bush combined ever did over the airwaves. And, he mischaracterizes the decision repeatedly, vilifying the Court for saying that broadcast profanity is "not indecent" and "fine to say" when in fact the court said nothing of the sort. Instead, what the Court decided was that Martin's FCC had failed to rationally justify its substantial expansion of the definition of what constituted "indecency," and that its decisions were so "arbitrary and capricious," and such an abuse of discretion, that they were unlawful. That's a big difference. Anyway, whatever set the usually courtly Martin off, if you read on, make sure the little ones aren't looking over your shoulder.
STATEMENT OF FCC CHAIRMAN KEVIN MARTIN
ON 2ND CIRCUIT COURT OF APPEALS INDECENCY DECISIONReaction
Today, the Second Circuit Court of Appeals in New York said the use of the words "fuck" and "shit" by Cher and Nicole Richie was not indecent.
I completely disagree with the Court's ruling and am disappointed for American families. I find it hard to believe that the New York court would tell American families that "shit" and "fuck" are fine to say on broadcast television during the hours when children are most likely to be in the audience.
The court even says the Commission is "divorced from reality." It is the New York court, not the Commission, that is divorced from reality in concluding that the word "fuck" does not invoke a sexual connotation.
These words were used in prime time, when children were watching. Ironically, the court implies that the existence of blocking technologies is one reason the FCC shouldn't be so concerned. But even a vigilant parent using current blocking technologies such as the V-Chip couldn't have avoided this language, because they rely on the program's rating, and in this case the programs were rated appropriate for family viewing.
If ever there was an appropriate time for Commission action, this was it. If we can't restrict the use of the words "fuck" and "shit" during prime time, Hollywood will be able to say anything they want, whenever they want.
Martin's full statement is here.
The full Center for Creative Voices in Media statement, and the Court of Appeals decision, are here.