In a sharp rebuke of the Bush-era crackdown on foul language on broadcast television and radio, a federal appeals court on Tuesday struck down the government's near-zero-tolerance indecency policy as a violation of the 1st Amendment protection of free speech.
The case was triggered by unscripted expletives uttered by Bono, Cher and Nicole Richie on awards shows earlier in the decade, and the court's decision calls into question the FCC's regulation of foul language and other indecent content on the public airwaves.
"It does make it much harder for the FCC to regulate this area," said Eugene Volokh, a UCLA law professor who specializes in 1st Amendment law. He called the ruling "a very important decision" whose ultimate fate could rest with the U.S. Supreme Court.
A three-judge panel of the U.S. 2nd Circuit Court of Appeals did not have the power to strike down the 1978 Supreme Court decision that affirmed the FCC's right to police the airwaves for objectionable content. But it reversed the aggressive stance the agency took starting in 2004 that found even a slip of the tongue that got by network censors was a violation subject to fines for the stations that aired it.
The court said that policy on so-called fleeting expletives was "unconstitutionally vague" and created a "chilling effect" on the programming that broadcasters chose to air. The court echoed complaints from network executives that the FCC's standards were nearly impossible to gauge, noting that the agency allowed the airing of the f-word and s-word in broadcasts of the World War II movie "Saving Private Ryan" but not in the PBS miniseries "The Blues."
"Under the current policy, broadcasters must choose between not airing or censoring controversial programs and risking massive fines or possibly even loss of their licenses, and it is not surprising which option they choose," U.S. Circuit Judge Rosemary S. Pooler wrote in Tuesday's 3-0 decision. "Indeed, there is ample evidence in the record that the FCC's indecency policy has chilled protected speech."
Fox Broadcasting Co., which was the lead plaintiff on the case, cheered the ruling. But Carter G. Phillips, the network's attorney on the case, said it would not lead to a flood of indecent content between 6 a.m. and 10 p.m., when the FCC's restrictions are in place because children are most likely to be watching or listening.
He noted that even though networks are free to air expletives after 10 p.m., such as on late-night talk shows, they rarely do.
"I think they'll continue to be sensitive to what their audience wants, but not go crazy in trying to avoid any other expletives at any time," he said.
The biggest impact would be on live programming, such as the awards shows that prompted the case.
"It will relieve Fox and any other network from expending enormous resources trying to bleep out unexpected language on live broadcasts," Phillips said.
But Timothy Winter, president of the Parents Television Council, a watchdog group that has advocated for tougher indecency enforcement, said that networks have been continually pushing edgier shows and now will be unrestrained.
"What this ruling is saying is that networks are free to no longer have a mute button — and that's unfortunate," Winter said. "We are strongly encouraging the Obama administration and the FCC to appeal this decision."
The FCC must decide whether to appeal to the Supreme Court, risking the possibility that the justices will strike down all regulation of broadcast content as outdated in an era of cable TV, Internet video and technology allowing parents to shield their children from seeing objectionable content.
FCC Chairman Julius Genachowski gave no hint as to what the agency would do in a one-sentence statement.
"We're reviewing the court's decision in light of our commitment to protect children, empower parents, and uphold the 1st Amendment," he said.
Genachowski, a Democrat appointed by President Obama, has not made indecency a priority, unlike his predecessor, Republican Kevin J. Martin. But with congressional elections looming this fall, politics could factor into any decision.
FCC Commissioner Michael J. Copps, a Democrat, has been a strong supporter of indecency regulation and slammed the court ruling as "an anti-family decision."
"I hope that this decision is appealed — and ultimately reversed," he said.
In the meantime, he called on the FCC to revise its policy to deal with the court's objections.
Experts said it was unclear whether the FCC would appeal, and if so, how the Supreme Court would rule.
The same appeals court found in 2007 that the FCC's policy on fleeting expletives was "arbitrary and capricious." The FCC appealed the ruling, and last year the Supreme Court upheld the crackdown, finding nearly all uses of certain words were indecent.
But the Supreme Court's 5-4 ruling was focused on the way the FCC enacted its tougher policy and sent the case back to the New York court to decide the broader issue of the constitutionality of the ban on profanity on the broadcast airwaves.
In fact, Justice Clarence Thomas, who voted with the majority to reverse the New York court on narrow administrative grounds, wrote in a concurring opinion that he found the FCC's "deep intrusion" into the 1st Amendment rights of broadcasters to be "problematic."
That policy dates back to a 1978 Supreme Court decision stemming from the radio broadcast of comedian George Carlin's "seven dirty words" monologue, in which he repeatedly used expletives. For years, the FCC largely ignored isolated utterances of vulgarities. But the FCC began a tougher crackdown in 2004 under the Bush administration.
Congress voted in 2006 to boost the maximum fine for each violation tenfold, to $325,000, in the aftermath of singer Janet Jackson's so-called wardrobe malfunction during a performance in the 2004 Super Bowl halftime show in which one of her breasts was briefly exposed on live TV. Each station that airs an indecency violation can be hit with the fine, putting networks on the hook for millions for each incident.