The Federal Communications Commission (FCC) is appealing a federal court ruling that its indecency policy is unconstitutional, arguing the decision makes it all but impossible for the agency to enforce restrictions on broadcasting nudity or profanity.
The Second Circuit Court of Appeals in New York struck down the FCC's indecency policy last month, calling it a violation of the First Amendment. The court said the rule forces broadcasters to self-censor in order to avoid fines for accidentally broadcasting nudity or profanity.
The FCC filed a petition Thursday morning asking the court to reconsider the decision.
"The three-judge panel's decision in July raised serious concerns about the Commission's ability to protect children and families from indecent broadcast programming," FCC general counsel Austin Schlick said. "The Commission remains committed to empowering parents and protecting children, and looks forward to the court of appeals' further consideration of our arguments."
The matter is expected to eventually reach the Supreme Court, which upheld the FCC's policy last year on procedural grounds but did not address the constitutional arguments.
The case stems from live broadcasts of the Billboard Music Awards in 2002 and 2003, during which musician Cher and reality television performer Nicole Ritchie used unscripted expletives.
The FCC changed its indecency policy in 2004 following a similar incident at the Golden Globes involving U2 lead singer Bono. The agency began to levy record fines against broadcasters for fleeting expletives uttered on live television.
The Commission ruled in 2006 that, under its new policy, both Billboard broadcasts were indecent. Fox, which broadcast the awards shows, responded by appealing that decision. In its appeal Fox was joined by other broadcasters who opposed the FCC's stricter enforcement policies.
The court of appeals initially ruled in favor of the broadcasters, claiming the FCC had failed to properly articulate a reason for the rule changes, but their decision was reversed by the Supreme Court. The court of appeals then ruled in favor of Fox on constitutional grounds, setting the stage for the FCC's latest appeal.
“The FCC’s challenge of the Second Circuit ruling is an important step in the right direction. Without Supreme Court action, the Second Circuit ruling would kick down the door for indecent content to be aired at any time of day over the public airwaves — even in front of children,” said Parents Television Council President Tim Winter.
The FCC's filing argues that the appeals court ignored the Supreme Court's ruling in the 1978 case FCC v. Pacifica Foundation, which gave the FCC the power to regulate broadcasts during hours children are likely to be watching or listening. That case concerned a broadcast of comedian George Carlin's famous
"Seven Dirty Words" routine, which itself formed the basis for much of
the FCC's enforcement policy during the next decade by serving as a list of words banned from daytime broadcasts.
The Pacifica decision also found that context is crucial to determining which content is indecent, while the FCC's brief claims the court of appeals decision would force the Commission to return to a list of banned words or something similar that labels certain content as profane regardless of context.
"The panel’s decision appears effectively to preclude the Commission from enforcing federal broadcast indecency restrictions unless it can develop a new policy that deemphasizes context (in order to survive the panel’s vagueness analysis), and yet simultaneously respects the Supreme Court’s endorsement of a contextual analysis," the petition states.