The 1st Amendment and those seven (really about 11) dirty words

A federal court found yesterday that a Federal Communications Commission policy punishing the unintentional airing of sporadic and unexpected expletives was invalid, calling it "arbitrary and capricious" and would probably not pass a First Amendment sanity check. The 2nd U.S. Circuit Court of Appeals did not go all the way. The FCC found in favor of a Fox challenge to the policy and sent the case back to the FCC for a "reasoned analysis" of its new approach to "indecency."

Some examples of infelicities that got the pot boiling:

Bono: During a January 2003 Golden Globes awards broadcast on NBC, U2 lead singer Bono said the words "f------ brilliant." The FCC contended the "F word" in any context "inherently has a sexual connotation. It might if you are over the age of about 70. But, for everyone under the age of 70, the F word is pretty normal, everyday language and while it has grown at least a dozen meanings, ir is not really

Cher: In a Dec. 9, 2002, broadcast of the Billboard Music Awards the performer Cher used the phrase "F--- 'em."

Richie: "Have you ever tried to get cow s--- out of a Prada purse? It's not so f------ simple."

Perhaps the best part of the ruling is that--as FCC Chairman Kevin Martin told The Associated Pres--the ruling will make it difficult to impose fines for indecency. Heh heh. "Practically, this makes it difficult to go forward on a lot of the cases that are in front of us," he said. and added that an appeal was being considered."

The appeals court said some of the FCC's explanations for a 180-degree change in its policy were "divorced from reality." It countered the FCC argument that broadcasters might now air expletives all day, saying broadcasters had never done so in the 30 years before the policy was changed.

In a statement, Martin said: "It is the New York court, not the commission, that is divorced from reality in concluding that the word 'f---' does not invoke a sexual connotation."

You have to love the FCC because all they want do it protect the children! Interestingly, the court cited both President Bush and Vice-President Cheney as people who had used "fleeting expletives" on the airwaves in the last few years. Both of them were caught on hot mikes using "indecent" language that could have netted $325,000 fines.

In a statement, Fox Broadcasting said: "We are very pleased with the court's decision and continue to believe that government regulation of content serves no purpose other than to chill artistic expression in violation of the First Amendment. Viewers should be allowed to determine for themselves and their families, through the many parental control technologies available, what is appropriate viewing for their home."

The appeals court said agencies are free to revise their rules and policies, but they must provide a reasoned analysis, which the FCC had failed to do. In fact the FCC has never actually been able to provide a reasoned analysis of anything at all. In a majority opinion written by Judge Rosemary Pooler, the appeals court said all speech covered by the FCC's indecency policy is fully protected by the First Amendment.

"With that backdrop in mind, we question whether the FCC's indecency test can survive First Amendment scrutiny," she said. "For instance, we are sympathetic to the networks' contention that the FCC's indecency test is undefined, indiscernible, inconsistent and consequently unconstitutionally vague."

The appeals court said some of the FCC's explanations for a 180-degree change in its policy were "divorced from reality." It then countered the FCC argument that broadcasters might without the new policy air expletives all day by saying broadcasters had never done so in the 30 years before the policy was changed.

jack, from Boston, Massachusetts (Thursday on to NYC)
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