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Court strikes down FCC indecency rules on fleeting f-bombs

photo credit: Getty Images

A federal appeals court on Tuesday knocked down the Federal Communications Commission's indecency policy, saying that the agency's guidelines for fleeting expletives and other indecencies in broadcast were vague and violated the First Amendment.

The opinion was a win for Fox Television, CBS Broadcasting and ABC, which had petitioned the U.S. Second Circuit Court of Appeals, saying guidelines on "fleeting expletives," implemented by the FCC in 2004, were arbitrary and capricious.

The three-judge panel of the U.S. Second Circuit Court of Appeals in New York said in its unanimous opinion that the FCC's policy was "unconstitutionally vague, creating a chilling effect that goes far beyond the fleeting expletives at issue here."

The FCC declined to comment on whether it would appeal the decision. Chairman Julius Genachowski said in a statement: “We’re reviewing the court’s decision in light of our commitment to protect children, empower parents, and uphold the First Amendment.”

The agency's approach to fleeting f-bombs and the like can be credited to U2 singer Bono, who at the Golden Globes Awards in 2003 said upon winning an award: "This is really, really [expletive] brilliant. Really, really, great."

After complaints about Bono's comments, the FCC declared that a single, nonliteral use of an expletive, or a "fleeting expletive," could be "actionably indecent." At the time, indecency in broadcast was the hottest issue at the FCC, with television viewers steaming over Janet Jackson's nipple exposure in the 2004 Super Bowl. Congress at the same time raised the maximum penalties for broadcast indecencies from $32,500 to $325,000.

The battle over indecency in broadcast began much earlier, however, when in 1972 comedian George Carlin began to broadcast his 7 Dirty Words stand-up routine. The FCC issued a complaint against a Pacifica radio station for airing the routine in 1973, an order the radio station fought all the way up to the Supreme Court. The court eventually ruled in favor of the FCC.

Andrew Jay Schwartzman, policy director of the Media Access Project, said broadcasters will next take their case to the Supreme Court to finally overturn the FCC's policy.

“The score for today’s game is First Amendment one, censorship zero," he said.

By Cecilia Kang  |  July 13, 2010; 1:49 PM ET
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"At the time, indecency in broadcast was the hottest issue at the FCC, with television viewers steaming over Janet Jackson's nipple exposure in the 2004 Super Bowl."

And rightfully so. And the viewing public demanded and received some action. Personally, I wish the fine had been $3.25 million.

This ruling is just another chip in the armor that separates us from a bunch of long-armed, ape-like brutes that bumble about saying and doing anything they like, whenever and wherever they like (the Vice President comes to mind). The FCC rule is an infringment of free speech? What a load of nonsense! Now we're down to saying that people have a right to use foul language (referring to a sex act) to make a public statement? Does this make sense to anyone? Did the addition of a four-letter expletive add anything substantive to Bono's statement? Are we to allow Janet to flash us her genitalia at her next half-time appearance? How about we mainatin a standard that people keep their stuff in their pants and their four-letter expletives to themselves? If people want to use that sort of language or have "wardrobe malfunctions" (what a crock) in their homes, that's up to them. But let's not encourage people to salt every public statement or appearance they make with such non-substantive, excessively-exagerrative speech and gestures.

What has happened to expecting people to exhibit a little civility in public? More importantly, what is wrong with it?

Posted by: flintston | July 13, 2010 4:14 PM | Report abuse

I could understand and agree with the rulling if the law is unclear. However this needs to be an adjustment in wording not a rulling that anything goes over public airwaves. I say do not waste your time fighting the court, just rewite the FCC rule to state what is and is not allowed more clearly. If we can tell companies how much fat, sugar ect is allowed then we should be able to dictate the amount of garbage goes in kids ears. So the only difference is in what whole we are talking about. Ears or mouth both can distroy a person life.

Posted by: mhambright | July 13, 2010 4:40 PM | Report abuse

This was an obvious victory for the Constitution, and everyone who is not anti-freedom knows it. Censorship proponents have long had far too much influence.

Posted by: revbookburn | July 13, 2010 6:51 PM | Report abuse

This was an obvious victory for the Constitution. Everyone who is not anti-freedom knows it. The proponents of censorship have long had far too much influence.

Posted by: revbookburn | July 13, 2010 6:53 PM | Report abuse

The First Amendment protects offensive speech and stupidity as we can see from this board. No speech should have to fit within someone else's cultural sensitivities to be constitutionally protected.

Posted by: ajlerner1 | July 13, 2010 7:33 PM | Report abuse

"Now we're down to saying that people have a right to use foul language (referring to a sex act) to make a public statement? Does this make sense to anyone?"

Actually, yes. This makes perfect sense to me. People have a right to say whatever they want, on whatever stage they want, as long as it is not slanderous or inciting violence.

I'll agree that content creators should have the right to place limits on the content in their programming, including the NFL on live half time shows, etc. And that there should be a clear system of indicating to parents and oothers the amount of "objectionable" material. But I don't agree that the FCC or any other government agency should be limiting this content.

Posted by: Holyelephant | July 13, 2010 7:51 PM | Report abuse

"This is a big f--king deal." - Joe Biden

Posted by: jeff20 | July 13, 2010 7:55 PM | Report abuse

Is this the "Pandora's Box" that the Supreme Court opened in "Citizens United vs. The Federal Election Commission?"

I sure hope this one goes to the Supreme Court so we can witness how the Bible Thumpers will pressure their decision.

Perhaps freedom of speech CAN be limited!

Also, all parents of children should reconsider whether they should allow them to watch any television.

How would a parent know if any of the cable stations would allow the F-Bomb on any of the live music awards shows who may forgo time delays in the interest of saving a few bucks.

Johnny Roberts and his merry puppets may have stuck there heads in a deep pile of stuff in this one.

I sure hope so!

Posted by: helloisanyoneoutthere | July 13, 2010 8:00 PM | Report abuse

Let's face it folks, liberal judges will make sure of one thing for sure. Eventlally porn will be on TV in prime time, available to everyone including children. Period. And it all falls on liberalism's forboding characteristic of absolute relativism. Nothing is defined, and most especially indency. And with indecency undefined, the liberal walks through the door and does anything they want in any company they want to do it in.

Liberalism is a cancer to our society.

Posted by: Indpnt1 | July 13, 2010 8:11 PM | Report abuse

Fuc*in’ A, man...

Posted by: 4Jaxon | July 13, 2010 8:13 PM | Report abuse

I can't believe this, I agree with most of you in that I too am fearful what this new change is going to promote. It's much more than censorship. How has our supposed "right" to free speech nullified the concern/welfare for others? Aren't our laws also supposed to protect people? Honestly, do we really want to promote any "free" speech? Where are we going to draw the line? Like it or not, society has to function within limits, or it leads to anarchy. Although, it is clear that the policy was not worded well, I agree with others that I'm afraid the new alternative will be worse. This decision could motivate many others to disconnect their t.v. and only use it for DVDs, which I think is unfortunate because I think there are some (although less and less) decent programs on the boobtube.

Posted by: yamila1 | July 13, 2010 8:16 PM | Report abuse

When it's everyday language in the schools, it's hard to say who would be protected by successfully banning "fleeting expletives."

Posted by: stuck_in_Lodi | July 13, 2010 8:20 PM | Report abuse

"The First Amendment only protects leftist speech."

Your Editorial Staff

Posted by: screwjob17 | July 13, 2010 8:25 PM | Report abuse

How heroic, Janice Jackson'e nipple has become the mantra of FCC puratinism and a far right christian crusade of inquisition. A nipple in the public media stirs more emotion than the drug trafiickers which pollute Main Street. The FCC should be more concerned with the increase in volume during TV commercials which is more of a headache than the nipple or a few choice words which everyone knows and uses on a daily basis...what HIPOCRICY!!!

Posted by: juke2 | July 13, 2010 8:38 PM | Report abuse

Good, maybe we can get decent halftime show during superbowl, instead of washed up has beens

Posted by: ih1096 | July 13, 2010 8:44 PM | Report abuse

The airwaves are a public venue. Our society, in its attempts to remain civilized, restricts what may happen in public. In keeping with the First Amendment the restrictions are fairly minimal. For public safety, one may not shout, "Fire," in a crowded movie house; for national security, one may not post military secrets in the newspaper; and in every society in history, there have been standards of decency. Those who suppose the First Amendment provides them an absolute right to shock their neighbors with indecent and obscene words and behavior are simply mistaken, remarkably rude, and for the damage they cause in the long term, dangerous.

If it's true that the standards we set are unclear, that's another question. But there are a finite number of expletives, and while some of us don't know what all of them are, there is broad agreement on the subject. Is there really a question about what a "single, nonliteral use of an expletive" is? I don't think so. There just happen to be judges who no longer wish to enforce the norm of decency. This is their excuse. The mire in which our decadent civilization wallows grows deeper by the decision.

Posted by: Pillar | July 13, 2010 8:45 PM | Report abuse

Just another example of Fox Family values. Strange the "liberals" at NBC were not involved.

Murdoch is a modern PT Barnum and on a certain level you've got to respect him. He preaches family values on his news channel and shows the smuttiest stuff legally possible on his television network and never pays the price for his hypocrisy. Amazing!

Posted by: LastConservativeDem | July 13, 2010 8:56 PM | Report abuse

"Liberalism is a cancer to our society."

Well it's a DARNED GOOD THING we have conservative, no tolerance, absolutely black/white thinking fundamentalists out there to save our world from those evil Liberals!

Isn't it, Bin Laden?

Posted by: Preternat | July 13, 2010 8:57 PM | Report abuse

When is the FCC going to do something about the high unemployment?

Posted by: Maddogg | July 13, 2010 8:58 PM | Report abuse

People please, the court struck down the FCC policy because it deemed it to be vague and violated the First Amendment. The key word is "vague" which means that the FCC has to rewrite its policy so that it is not vague. These types of rulings happens often due to language in a policy, rules or law in turn the policies, rules or laws are rewritten to adhere to the constitution. Secondly this was not the Supreme Court, as one blogger has stated, it was a federal appeals.

As for the blogger screaming "Liberalism" as I can recall these are the same appeal courts that Bush stacked with conservative judges so your rant has no merit. Liberalism is not the cancer of our society but ignorance is.

Posted by: no_turning_back | July 13, 2010 9:02 PM | Report abuse

Ah yes, the liberalism as a dirty word meme.

Don't think that the irony escapes me.

Liberalism ended child labor, brought you the 40 hour work week, the weekend, clean water, air you can breathe, a woman's right to vote, a woman's right to convict her rapist, ended segregation, saved millions of hard working folks from a retirement in poverty and hunger.

Liberalism will continue to pursue equality, access to healthcare for all, equitable wages for a days work, and accountability from corporations who pollute, rip off consumers and fake accounting to cheat on their taxes and steal millions from investors.

Yes, liberalism will kill us all!!! Run for the hills!

Posted by: calboxer | July 13, 2010 9:10 PM | Report abuse

Oh yeah, how many of you didn't know the f word by age 8?

Did learning it kill you or anyone you know? Did hearing curse words drive you to a life of crime?

Don't like cursing? Don't curse. Don't let your children curse.

Bask in the satisfaction that you are a better person than I.

Glory to the father our maker and theoretically, the one true God who gave us curse words, no? Oh did God only make the good things in the universe and Satan made curse words and doodies?

Yes, that must be it.

Posted by: calboxer | July 13, 2010 9:15 PM | Report abuse

Hey...who gives a FRA? It's a free-for-all right? I mean, who cares if your child sees or hears things unsuitable for children? No problem. Low-lifes subject their children to unsuitable material all the time. It's a family tradition. And, of course, we don't want a profit to get in the way of morals and principals do we?. But then again, if these parents had any, this liberal rag wouldn't have anything worthwhile to report would it? Loosers!!

Posted by: jeepmanjr | July 13, 2010 9:16 PM | Report abuse

Good. Now go F yourself!

Posted by: TOMHERE | July 13, 2010 9:17 PM | Report abuse

Can't wait to see how the pro-liberty tea partiers deal with the anti-liberty, pro-censorship social conservatives in their ranks.

Yeah, I thought so. Liberty only as long as it's the right kind of liberty. Freedom's just another word for what we'll let you do, say, think, and feel.

Posted by: jontomus | July 13, 2010 9:19 PM | Report abuse

To the person who indicated this was a victory for the Constitution, yeah, I can just hear Washington, Jefferson, Adams, and any others having to do with the drafting of our Constitution, as they gave a victory shout when the final draft was finished, "Man, this is f**king great.!"

Posted by: gnbmas | July 13, 2010 9:21 PM | Report abuse

Why is a Playboy centerfold obscene but a nude sculpture is a work of art?

According to Bob Woodward's book The Brethren, one former Supreme Court Justice used the The Limp Dick Test to decide if something was obscene. You'll have to read the book for the rest.

Posted by: ObamasGulfResponseIsMuchWorseThanKatrina | July 13, 2010 9:33 PM | Report abuse

If a live program is broadcast and the broadcaster captures a fleeting expletive (e.g., Vice President Biden’s use of “f__king” in the White House East Room or the expletives released by a staffer at the Democratic National Committee’s national convention when balloons failed to drop as planned), and if that fleeting expletive is broadcast across the nation and viewed or heard by 30 million citizens, yet only 100,000 viewers or listeners complain of its content, then, perhaps the FCC should weigh the reality that 29,900,000 viewers or listeners may not have objected to the allegedly questionable content broadcast on-air. The overwhelming majority of the viewing or listening population may not object to content that the FCC deems to be taboo and in conflict with contemporary community standards.

By taking the position that the FCC knows best what content is to be deemed indecent or profane using arbitrary, inconsistent, and incoherent standards, the FCC is unjustifiably taking the role of the thought police and is precipitously leaping to penalties that it should not be imposing and chilling free speech in the process. The inconsistent application of vague rules on indecency and profanity does irreparable harm to free speech. After years of the FCC leaping around slapping arbitrary fines willy-nilly, the Second Circuit gave the prudes at the FCC a well-deserved slap down today.

Posted by: Jeff_in_DC | July 13, 2010 9:34 PM | Report abuse

I think we finally have an answer to the question: Have you no sense of decency sir, at long last? Have you left no sense of decency?

The answer from an Appelate Court of the United Sstaes is a resounding NO. Decency is a vague concept that Americans no longer can identify.

Decency has a chilling effect on speach and is unConstitutional. I would say in the modern climate it must also be considered unAmerican.

Posted by: krush01 | July 13, 2010 9:39 PM | Report abuse

Ah, crap.

Posted by: jbh3 | July 13, 2010 9:51 PM | Report abuse

If the FCC had spent 1% as much time worrying about children viewing images of violence as it did worrying about impolite language, maybe our society would improved.

Instead, we are inundated with murder, rape, assault, and various other actually-destructive images. But at least the perpetrators say, "darn".

Kevin Olson
Manassas, VA

Posted by: noslok | July 13, 2010 9:51 PM | Report abuse

Thanks to the labeling of tv shows, producers have way more leeway to use foul language, harsh and violent themes, and highly sexualized content.
I agree with the courts decision, but the codifying of decency and and a lack of it always leads to labels and less restraint.
I dare any complaining parent to check out what is shown on basic cable on any given afternoon. Thanks to the labels, we can now enjoy The Sopranos at 4 in the afternoon.

Posted by: ripper368 | July 13, 2010 9:56 PM | Report abuse

This one is easy. "actionablly indecent" means that the networks bore the entire brunt of any unintended or "fleeting" expletives.

That's not fair.

The artists, in either case were not held liable but the networks were.

"Actionablly" infers that the networks had some premonition or foreknowledge that such a misshap would occur and that they didn't do anything about it.

That's nuts.

Stuff happens and as long as the incident was totally ad hoc, no harm, no foul.

Posted by: joecairo | July 13, 2010 9:59 PM | Report abuse

The list of attorneys who briefed this appeal reads like a directory of top Washington appellate counsel -- Carter Phillips of Sidley Austin for Fox, Miguel Estrada of Gibson Dunn & Crutcher for NBC, and Seth Waxman of Wilmer Cutler Pickering Hale & Dorr for ABC, among others. Whatever one's individual views of the merits of this case may be, the broadcast media apparently felt strongly enough about the First Amendment issues involved to hire some very prominent attorneys to represent them. The FCC does have a legitimate role to play in regulating the broadcast of obscene materials. Personally, though, I think the FCC went too far in this case, and the court's decision was justified.

Posted by: 02Pete | July 13, 2010 10:00 PM | Report abuse

"This is a big f--king deal." - Joe Biden

Posted by: jeff20


"Go f-bomb yourself!" - Dick Cheney

Posted by: camera_eye_11 | July 13, 2010 10:02 PM | Report abuse

flintston wrpte:
"Now we're down to saying that people have a right to use foul language (referring to a sex act) to make a public statement? Does this make sense to anyone?"

Well, yes. Yes it does.

"Are we to allow Janet to flash us her genitalia at her next half-time appearance?"

Here is the bizarre thing about America. You have no problem watching 22 grown men attempting to hit each other as hard as they can, but throw a hissy fit if you happen to glimpse a normally-hidden part of the female anatomy for a fraction of a second.

"How about we mainatin a standard that people keep their stuff in their pants and their four-letter expletives to themselves?"

Here's an idea. If you don't like it, change the channel. Eventually the content providers will get the message.

Posted by: presto668 | July 13, 2010 10:06 PM | Report abuse

As a devout Republican and Christian, I say this is an outrage. After we sweep to victory in 2012, we'll be sure to install the most fundamental of Christian fundamentalist as head of the FCC and march America backwards double time to a golden age of television and radio where every broadcast is pre-approved for moral purity and pro-American values. The anti-American anti-Christian pornographers who are producing what passes for entertainment will be blacklisted or locked up.

Posted by: senbilboredux | July 13, 2010 10:10 PM | Report abuse

I'm fascinated by how something as "vague" turns into a full on fight about liberal and conservative.

What fascinates me even more is that the right wing will try to force their religion down my throat and call that "freedom." But the same camp will try to stifle other dissent because of what they label "indecency."

Personally I think their should be some agreed upon standards for "decency" on public airwaves, but it needs to be a level playing field. The right wing (or left wing, for that matter) churches should stay out of politics or be taxed.

We have become too polarized and this is just another example. For the record, i attend church and I'm a "liberal" but this stuff has just gotten out of hand.

Posted by: TLS2 | July 13, 2010 10:16 PM | Report abuse

The christian will to suppress, oppress, and repress others know no bounds.

Television comes with two knobs, one changes the channel and one turns it off. But christians never had an easy time with knobs did they?

Thanks George Carlin, for the material.

Posted by: jontomus | July 13, 2010 10:23 PM | Report abuse

"When I want it to stick, I give it to them loud and dirty." - General George Patton

To all those deeply offended by a utterance of a word: be thankful!!! Reflect on how wonderful your life must be that such insignificant nonsense has become the focus of your ire.

Posted by: bigwu | July 13, 2010 10:36 PM | Report abuse

The Supreme Court is full of losers. Couldn't you tell when the majority voted 5 to 4 vote to allow corporations and unions to use their general funds to directly support political candidates. Now Decency is a thing of the past and the 7 second delay button won't matter anymore. Stay tuned, more decay to follow. God is not please.

Posted by: MILLER123 | July 13, 2010 11:12 PM | Report abuse

well, MILLER123, your god is pleased with you isn't he? And your family, and all the real christians. He's not going to screw you just because the rest of us feel like having more freedom than you want us to have ... is he?

Blaming you, for our desire to live free of your oppression? Not a very good god, is it?

Posted by: jontomus | July 13, 2010 11:35 PM | Report abuse

I'm constantly amazed that when issues of morality arise, conservatives & the religious right want govt. intervention.

How about this, keep your morals in your home and remember that US citizens have a constitutionaly right to express ourselves as we see fit...not your God. More over, I believe God says "judge not less ye be judge" - so we have spiritual right as well. My F***king loose morals are an issue between me and my god. In addition, if you stop letting TV & video games raise your kids you wouldn't have to worry about what they see/hear/play.

Posted by: Jigsaw | July 14, 2010 8:39 AM | Report abuse

Morals.. those are user defined imo.

I don't go around beating, killing, or raping people, and I don't steal or screw around with married people.

The end.

I don't want someone elses morals pushed on me, that's why I live in the US because it's supposed to be the country where I have the right to free speech, and to practice my beliefs freely.

If you don't like your kids to hear the f bomb on tv, leave the Disney channel on or some channel that's devoted to holier than thou christians, or move to Iraq where they love censoring people and women.

Should they say the f bomb on the Smurfs or Hanna Montana? No. Those are shows geared towards children. But should they drop the f bomb on Saturday Night Live or Law and Order? Hell yeah. Those are shows geared towards young adults and shouldn't be held back because irresponsible parents may be allowing their children to watch shows that deal with adult oriented material.

Parents need to start raising their own children and quit expecting the networks, video game companies, musicians, and everyone else to do it for them. More and more young Americans aren't even having kids because they don't want that responsibility, so they shouldn't be burdened by those who took on that responsibility but are flaking.

Posted by: Devianza | July 15, 2010 5:46 AM | Report abuse

And I shouldn't have seperated women from people in the previou comment.

It isn't their fault they have those scary, obscene nipples.

Janets nipples were oh sooo scary...

NBC should burn in hades for that wardrobe malfunction.

Posted by: Devianza | July 15, 2010 5:53 AM | Report abuse

I think by now, based just on the comments already posted, we can tell by now that this is NOT a Conservative vs. Liberal issue. In fact people who claim to be part of both sides seem to be defending and rejecting the FCC and their policies.

What the real issue here is chaos vs. order. When the Founding Fathers gave us the Constitution, I seriously doubt they intended for it to be used for this current "anything goes" mentality many Americans seem to have. Even a "free" society must have rules and regulation to maintain it, other wise, it will fall apart over time. But many American these days are so caught up in "getting Big Government out of our lives" and being able to do what ever they want, they don't understand or realize they are in fact sowing the seeds of our great nation's final curtain. We can not exist without order.

For me personally, I agree that if the FCC's policies are not clear, they should be made clear. Most likely though, they were vague in hopes of supporting the First Amendment. But we all know how Americans aren't always the type to think things over, but rather more times then not rather rush in, bust heads and ask questions later.

I'd very much love to have full control over my entertainment, I'm very much into whatever works for the individual. In fact I don't plain on ever owning cable and don't have an HD tv or converter box, so I don't watch public tv, nor do I trust it anymore. All I watch are DVD's. In fact, I'd really love to have the right and freedom to watch movies how I want without much of the sex, violence and language found in even "G" or "PG" rated films.

Unfortunately, the same industry that cries foul over the FCC policies and claims that they are being told what to do and what they can and can not show on tv, seems to not mind doing the very same thing to the viewing public whenever the issue of "family friendly edits" of their tv shows or films comes up. I guess according to Hollywood, freedom is a one way street.

If Hollywood wants the FCC regulation struck down, fine, but please then follow it up by allowing the individual the right to watch or not watch versions of your films and show without sex, violence and bad language. Otherwise, this talk of "freedom" is just that, talk.

Posted by: milojthatch | July 20, 2010 3:57 PM | Report abuse

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