On October 30, 1973, a man driving in his car with his young son set off a chain of events that had a significant impact on our legal system’s approach to obscenity law. He turned his radio dial to a New York station that was broadcasting George Carlin’s 12 minute monologue about “The Seven Dirty Words You Can’t Say On Television”. Offended that his young son heard these words, he filed a complaint with the FCC. After a five year see-saw battle in the lower courts, the Supreme Court upheld the FCC’s sanctioning of the radio station. In its decision, (FCC v. Pacifica Foundation, 438 U.S. 726 (1978)), the Court carved out a new category, “indecent language” which the FCC could ban from the airwaves until 10 p.m., when it was assumed that children and minors would be asleep and not at risk of hearing such language.
When the decision came down I was a law student and an Articles Editor of the Hasting Constitutional Law Quarterly, assigned to review that terms’ USSC decisions. I was baffled at the tortured logic the Court deployed in support of the “indecency” doctrine. In my article, First Amendment Cases - U.S. Supreme Court - 1978 Term, Hastings Constitutional Law Quarterly, Fall 1979, I was critical of the vagueness inherent in the definition of the term “indecency”. Coming on the heels of the equally vague decision in Miller v. California, (413 U.D. 15, (1973)), with its reference to a non-existent “local community standard”, the Pacifica case seemed to add insult to injury by adding yet another vague term for media publishers to attempt to avoid running afoul of.
Last week, 32 years later, the U.S. Court of Appeals for the Second Circuit finally struck down the “indecency” doctrine as being hopelessly uncertain and therefore in violation of the First Amendment. (Fox Television v. FCC, US Ct. App. 2d Cir., O6-1760-ag (July 13, 2010)).
The Court’s opinion answers the question of why it took so long for the indecency policy of the FCC to be once again considered by a court. The answer appears to be that the FCC, after the Pacifica case, may have realized that the Supreme Court’s decision rested on very thin legal reasoning, , and that the creation of the indecency standard was fraught with constitutional uncertainty, and likely was violative of First Amendment rights. So, for many years following the decision, the FCC limited itself to claims arising from the broadcast of only the specific seven dirty words from Carlin’s monologue. From 1978 to 1987 there were no such enforcement actions filed – why? Because broadcasters had a simple list of words to avoid, and did so.
The FCC, during most of these years, also recognized that with respect to live broadcasts, it was sometimes impossible to filter out the fleeting or one time use of an expletive, and so they adopted a “fleeting use” or one time use exception to the indecency policy as well. In a series of cases the FCC declined to enforce the policy where a single use of a word was the source of a complaint.
This caution on the part of the FCC also met a concern voiced by the Supreme Court in the Pacifica case – which was that the Court explained that it was trusting in the sound discretion of the FCC in allowing the indecency standard to be applied (Pacifica at 761 n.4) – a trust that the FCC honored by greatly limiting its use of its discretion for 30 years.
However, things changed in 2004. Blame it on Bono of U2. In accepting a Golden Globe Award, he said, “this is really, really, fucking brilliant.” (Fox at 9). The FCC found his spontaneous one time use to be “indecent” and “profane”. Over the next six years, the FCC dramatically increased its fines and abandoned both its limited application of the policy and its fleeting use exception. This shift in administrative approach drew substantial industry criticism, and led to the instant case.
The Second Circuit decision cites numerous examples of the FCC’s inconsistent application of its indecency policy over the past six years, and also noted that the changes in media platforms and the inclusion of the V-chip (allowing adults to filter programs they don’t want their children to watch) have changed the landscape of broadcast television, obviating the need for the policy. (Fox at 16).
The Court in Fox noted that even the FCC could not provide a list of terms or actions that would give rise to sanctions, finding “If the FCC cannot anticipate what will be considered indecent under its policy, then it can hardly expect broadcasters to do so”. (Id at 24).
It’s a good day for protectors of the First Amendment. Thanks George, for opening minds.