Why the Second Circuit Ruling Against the FCC Is Wrong, Part 2
by: Steven Griffin - Jul 2, 2007 - comment
The Second Circuit Court of Appeals predicted in its 2-1 ruling earlier this month against the Federal Communications Commission that the agency’s restrictions against “fleeting,” isolated expletives would probably not hold up under First Amendment scrutiny on appeal.
However, a closer look at constitutional precedent indicates exactly the opposite.
The FCC’s current policy defines indecent speech as “language that describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities or organs1.” This definition was recently extended to include fleeting expletives2. Broadcast of indecent material is restricted to the hours between 10 p.m. and 6 a.m., a standard adopted by Congress in 1992 and upheld by the D.C. Circuit Court of Appeals in 19953.
Click here to read part 1 of this series, entitled Why the Second Circuit Ruling Against the FCC Is Wrong, Part 1
The FCC sanctioned Fox stations for their broadcast of the 2002 and 2003 Billboard Music Awards when artists Cher and Nicole Richie used the F-word and S-word during the live broadcasts. The Second Circuit overturned the FCC’s actions, ruling that the agency cannot sanction broadcasters for the airing of “fleeting,” or isolated, expletives because the court did not think the FCC gave a “reasoned explanation” for the change in its indecency policy to exclude such content between 6 a.m. and 10 p.m.
The Supreme Court upheld the Commission’s power to regulate indecent and profane broadcasting on the airwaves in 19784. The broadcast media have received the most limited First Amendment protection of all forms of communication because substantially more individuals want to broadcast than there are frequencies to allocate5. Because of the scarcity of frequencies, the Government may put restraints on those with broadcast licenses “in favor of those whose views should be expressed in this unique medium6.” To make broadcast communications possible, the government must allow licenses to some and deny licenses to everyone else7. Therefore, it is frivolous to suggest that the right to broadcast is equivalent with the right of individuals to speak, write or publish8.
Justice John Paul Stevens, writing the majority opinion in Pacifica, noted that it was “perfectly clear” that Section 326 of the Communications Act (which forbids censorship) “was not intended to limit the Commission’s power to regulate the broadcast of obscene, indecent, or profane language” and that the Commission’s regulation of indecent speech did not violate the First Amendment9. Federal statute also requires the FCC to ensure broadcasters are serving the public interest10.
The broadcast media have established a widespread presence in Americans’ lives, and “patently offensive, indecent material” reaches citizens not only in public, but in the privacy of the home, where the “right to be left alone plainly outweighs the First Amendment rights of an intruder11.” The broadcast audience is constantly tuning in and out, so prior warnings about a program’s content cannot completely protect the consumer from indecent or profane language12.
The Supreme Court ruled in 1984 that even where regulation of broadcast speech that “lies at the heart of First Amendment protection” is concerned, the government’s interest need only be “substantial” and the restriction “narrowly tailored” – not the least restrictive alternative available13. Despite the growing role of cable television and alternative technologies, broadcasting still should be subjected to more regulation than is generally permissible under the First Amendment because it remains an essential forum for subjects across the broad spectrum of speech14.
An FCC report last year to Congress indicated that 109.6 million American households have at least one television, and 15.4 million of those do not subscribe to cable or satellite services and rely solely on over-the-air broadcasting15. Another study, conducted in 2003, showed that two-thirds of children ages 8 to 18 have televisions in their bedroom, but nearly half of those do not have cable or satellite16.
The government clearly has a substantial, if not compelling, interest in protecting children from exposure to indecent and profane broadcasts17. Pacifica noted that “broadcasting is uniquely accessible to children, even those too young to read,” and that broadcasters “cannot reach willing adults without reaching children18.” The regulation of otherwise protected speech is justified by the government’s interest in the “well-being of its youth” and in supporting “parents’ claims to authority in their own household19.”
The Supreme Court has repeatedly held that individuals are not required to welcome unwanted speech into their own homes and that the government may protect that freedom20. In several instances, the Supreme Court has upheld complete bans on expressive speech that can invade the home, including hand-billing and door-to-door solicitation21. Just several years ago, the Supreme Court reaffirmed its stance that “the right to avoid unwelcome speech has special force in the privacy of the home22.”
Although the Pacifica court did not rule specifically on the constitutionality of restrictions against fleeting expletives, it did say the dangers to the development of children posed by indecency and profanity do not lessen merely because a word or phrase is not repeated at length. The broadcast of the Billboard Music Awards, like Pacifica’s broadcast of the “Filthy Words” monologue, “could have enlarged a child’s vocabulary in an instant23.”
The Supreme Court has demonstrated that the First Amendment does not provide an absolute right to be free from context-based government regulation of speech. Justice Oliver Wendell Holmes noted in 1919 that “the character of every act depends upon the circumstances in which it was done” – a person falsely shouting “Fire!” in a crowded theater to cause panic is not protected24. Nor is a person who uses words calculated to cause a fight25. Likewise, libelous speech against private citizens is treated more severely than the same against public officials26.
While agreeing with broadcasters that FCC regulation of indecency may lead some broadcasters to censor themselves, Justice Stevens noted that at most “only the patently offensive references to excretory and sexual organs” will be deterred and that those references, while protected, “lie at the periphery of First Amendment concern27.”
The Supreme Court has allowed such regulations in the past. It concluded that deterring the sale of obscene materials is a legitimate goal of anti-obscenity laws, and any such law will inevitably cause some tendency to self-censor on the part of a distributor of information, such as a bookseller28. And, even though the FCC has shown restraint in imposing monetary fines for indecent and profane broadcasting, stiff fines are a constitutional means of deterring illegal conduct29.
On the other hand, if the courts make a free speech exception for fleeting and isolated expletives out of a fear of self-censorship and a loss of artistic expression, then broadcasters could gratuitously broadcast unlimited numbers of highly offensive sexual or excretory terms in the middle of the afternoon, as long as they did so one at a time. The Commission has shown the utmost restraint by not sanctioning broadcasters for isolated indecent or profane speech in breaking news and sports programming because of the speech’s context.
Another contention of broadcasters is that the FCC’s indecency definition is unconstitutionally vague. Pacifica rejected that argument and the D.C. Circuit reaffirmed the indecency definition’s validity in the ACT III case in 1995. The Second Circuit, rejecting a vagueness challenge in an indecent telephone messages case in 1991, claimed the FCC’s definition “is sufficiently defined to provide guidance to the person of ordinary intelligence in the conduct of his affairs,” thereby satisfying the Constitution30. Even if the definition is not perfect, the Supreme Court has said “perfect clarity and precise guidance have never been required, even of regulations that restrict expressive activity31.”
Broadcasters also claim the FCC’s new indecency policy is not narrowly tailored to achieving its public interest since the V-chip — new technology that filters broadcasting based on ratings criteria — is allegedly the least restrictive means of protecting children. But the standard of review under the First Amendment for broadcast regulations is intermediate scrutiny, which does not have a requirement that the government use the least restrictive means possible32. Restricting indecent material to the hours between 10 p.m. and 6 a.m. is an effective, narrowly-tailored method for achieving the government’s interest. Such a policy does not ban certain speech but limits it to a time when children will not be widely subjected to its influence.
Extensive evidence also suggests that the V-chip is generally ineffective at blocking unwanted content. A 2004 study found that more coarse language was broadcast during TV-PG programs than during those rated TV-14, the opposite of what viewers would tend to believe33.
Vast amounts of constitutional precedent point to the fact that the FCC may regulate indecent content — including fleeting expletives — on the airwaves and fine broadcasters who violate its policies. If this case is appealed, the agenda of the broadcasters, rather than the FCC’s constitutional authority, will almost certainly not hold up in court.
Click here to read part 1 of this series, entitled Why the Second Circuit Ruling Against the FCC Is Wrong, Part 1
1 The Regents of the Univ. of Cal., 2 F.C.C.R. 2703 at ¶ 3 (1987).
2 See Complaints Against Various Broadcast Licensees Regarding Their Airing of the “Golden Globe Awards” Program, 19 F.C.C.R. 4975, at ¶¶ 8-9 (2004).
3 Action for Children’s Television v. FCC (ACT III), 58 F.3d 654, 665 (D.C. Cir. 1995) (in banc).
4 FCC v. Pacifica Found., 438 U.S. 726 (1978).
5 Id., at 748.
6 Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 390 (1969).
7 Id., 389.
8 Id., at 388 (1969).
9 Pacifica, 438 U.S. at 737-38.
10 47 U.S.C. §§ 309(a), (k)(1)(A).
11 Pacifica, 438 U.S. at 748.
12 Id.
13 FCC v. League of Women Voters of Calif., 468 U.S. 364, 380-381 (1984).
14 ACT III, 58 F.3d at 660.
15 Annual Assessment of the Status of Competition in the Market for the Delivery of Video Programming (Feb. 2006).
16 Complaints Regarding Various Television Broadcasts Between Feb. 2, 2002 & Mar. 8, 2005, FCC 06-166, ¶ 56 (Nov. 6, 2006) (“Remand Order”).
17 ACT III, 58 F.3d at 656.
18 Pacifica, 438 U.S. at 748, 758-59 (Powell, J., concurring).
19 Id., at 749.
20 Frisby v. Schultz, 487 U.S. 474, 485 (1988).
21 Id.
22 Hill v. Colorado, 530 U.S. 703, 717 (2000).
23 Pacifica, 438 U.S. at 749.
24 Schenck v. United States, 249 U.S. 47, 52 (1919).
25 See Chaplinsky v. New Hampshire, 315 U.S. 568 (1942).
26 See Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974).
27 Pacifica, 438 U.S. at 739.
28 Alexander v. United States, 509 U.S. 544, 556 (1993) (citing Smith v. California, 361 U.S. 147, 154-55 (1959)).
29 Id.
30 Dial Information Servs., 938 F.2d 1541 (2d Cir. 1991).
31 Ward v. Rock Against Racism, 491 U.S. 781, 794 (1989).
32 League of Women Voters, 468 U.S. at 380-381.
33 Barbara K. Kaye & Barry S. Sapolsky, Offensive Language in Prime-Time Television: Four Years After Television Age and Content Ratings, 48 Journal of Broadcasting & Electronic Media 554, 563-64 (2004).
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