Court Rebuffs F.C.C. on Fines for Indecency
By STEPHEN LABATON
WASHINGTON, June 4 — If President Bush and Vice President Cheney can blurt out vulgar language, then the government cannot punish broadcast television stations for broadcasting the same words in similarly fleeting context.
That, in essence, was the decision on Monday, when a federal appeals panel struck down the government policy that allows stations and networks to be fined if they broadcast shows containing obscene language.
Although the case was primarily concerned with what is known as “fleeting expletives,” or blurted obscenities, on television, both network executives and top officials at the Federal Communications Commission said the opinion could gut the ability of the commission to regulate any speech on television or radio.
Kevin J. Martin, the chairman of the F.C.C., said that the agency was now considering whether to seek an appeal before all the judges of the appeals court or to take the matter directly to the Supreme Court.
The decision, by a divided panel of the United States Court of Appeals for the Second Circuit in New York, was a sharp rebuke for the F.C.C. and for the Bush administration. For the four television networks that filed the lawsuit — Fox, CBS, NBC and ABC — it was a major victory in a legal and cultural battle that they are waging with the commission and its supporters.
Under President Bush, the F.C.C. has expanded its indecency rules, taking a much harder line on obscenities uttered on broadcast television and radio. While the judges sent the case back to the commission to rewrite its indecency policy, it said that it was “doubtful” that the agency would be able to “adequately respond to the constitutional and statutory challenges raised by the networks.”
The networks hailed the decision.
“We are very pleased with the court’s decision and continue to believe that the government regulation of content serves no purpose other than to chill artistic expression in violation of the First Amendment,” said Scott Grogin, a senior vice president at Fox. “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.”
Mr. Martin, the chairman of the commission, attacked the panel’s reasoning.
“I completely disagree with the court’s ruling and am disappointed for American families,” he said. “The court says the commission is ‘divorced from reality.’ It is the New York court, not the commission, that is divorced from reality.”
He said that if the agency was unable to prohibit some vulgarities during prime time, “Hollywood will be able to say anything they want, whenever they want.”
Beginning with the F.C.C.’s indecency finding in a case against NBC for a vulgarity uttered by the U2 singer Bono during the Golden Globes awards ceremony in 2003, President Bush’s Republican and Democratic appointees to the commission have imposed a tougher policy by punishing any station that broadcast a fleeting expletive. That includes vulgar language blurted out on live shows like the Golden Globes or scripted shows like “NYPD Blue,” which was cited in the case.
Reversing decades of a more lenient policy, the commission had found that the mere utterance of certain words implied that sexual or excretory acts were carried out and therefore violated the indecency rules.
But the judges said vulgar words are just as often used out of frustration or excitement, and not to convey any broader obscene meaning. “In recent times even the top leaders of our government have used variants of these expletives in a manner that no reasonable person would believe referenced sexual or excretory organs or activities.”
Adopting an argument made by lawyers for NBC, the judges then cited examples in which Mr. Bush and Mr. Cheney had used the same language that would be penalized under the policy. Mr. Bush was caught on videotape last July using a common vulgarity that the commission finds objectionable in a conversation with Prime Minister Tony Blair of Britain. Three years ago, Mr. Cheney was widely reported to have muttered an angry obscene version of “get lost” to Senator Patrick Leahy on the floor of the United States Senate.
“We find that the F.C.C.’s new policy regarding ‘fleeting expletives’ fails to provide a reasoned analysis justifying its departure from the agency’s established practice,” said the panel.
Emily A. Lawrimore, a White House spokeswoman, said Mr. Bush and Mr. Cheney had no comment about the ruling.
Although the judges struck down the policy on statutory grounds, they also said there were serious constitutional problems with the commission’s attempt to regulate the language of television shows.
“We are skeptical that the commission can provide a reasoned explanation for its ‘fleeting expletive’ regime that would pass constitutional muster,” said the panel in an opinion written by Judge Rosemary S. Pooler and joined by Judge Peter W. Hall. “We question whether the F.C.C.’s indecency test can survive First Amendment scrutiny.”