Last week Senator Rockefeller introduced a relatively unnoticed bill (S. 1780) that would effectively overturn a major court decision in the area of free expression: Fox Television Stations v. FCC. On June 4, the Court of Appeals held that the FCC’s recently established stance that a single utterance of a curse word on broadcast television may be indecent, violated the Administrative Procedure Act (APA).

Deviating from a long-standing agency precedent, the FCC had ruled that one-time uses of the common expletives and their various derivations were now presumptively indecent. The Court found this abrupt change in policy to be a violation of the APA. Apparently disappointed by the Second Circuit’s ruling, Senator Rockefeller now wants to mandate that the FCC “maintain a policy that a single word or image may constitute indecent programming.” (The bill is scheduled for Commerce Committee markup on July 19.)

The bill has interesting implications for free expression.

On the bad side: There is no doubt that a mandate by Congress that a “fleeting expletive” can now be found indecent will create a vast chilling effect on broadcast speech. Prior to this bill and the FCC’s policy change, the FCC exercised discretion in determining which utterances were indecent, and consistently found that one-time uses of curse words were not indecent. Now, with a statutory directive stating that the FCC indeed has the authority to find fleeting expletives indecent, it is highly likely that broadcasters will censor themselves even more to avoid being targeted by the Commission.

On the good side: The FCC’s constitutional authority to regulate broadcast content — particularly that which is “indecent” — thinly rests on the 1978 Supreme Court case FCC v. Pacifica Foundation. In that case, the Court held that the FCC had properly found comedian George Carlin’s “Seven Dirty Words” monologue to be indecent. However, the Court strongly emphasized that broadcast “indecency is largely a function of context — it cannot be adequately judged in the abstract.” The Court stressed that its ruling was limited to the narrow facts of the case — which included the fact that Carlin repeated the seven words over and over again during a 12-minute broadcast during the mid-afternoon. The Court specifically stated that it was not ruling on whether an “occasional expletive” could be indecent; and concurring justices expressed their expectation that the FCC would continue to “proceed cautiously” in regulating broadcast content in light of First Amendment concerns. If Senator Rockefeller’s bill becomes law, it will certainly force the courts to consider the constitutional question: Does the FCC have First Amendment authority to censor the use of a single (curse) word over the airwaves?

As noted, the Supreme Court in Pacifica explicitly did not reach this issue, and even the Second Circuit in Fox Television Stations avoided a constitutional analysis; the Court of Appeals’ ruling instead focused on the more technical APA violation. However, with Congress effectively knocking a key contextual factor out of the indecency analysis (i.e., whether a word was repeated or fleeting), it increases the likelihood that courts will have to address the issue of whether it is constitutionally permissible to regulate isolated utterances of questionable language. Having this issue finally addressed by courts will — we hope — be a good thing for free speech jurisprudence, particularly because we think that the FCC’s constitutional authority to regulate broadcast content is weak – and weakening.

As technology continues to advance, the time is coming when the constitutional question will not be, “to what degree may the FCC regulate indecent speech?” but rather, “can the FCC regulate indecent speech at all?” In Pacifica and other cases, the Supreme Court argued that government regulation of broadcast content is constitutionally permissible because of the medium’s unique “invasiveness.”

But as CDT argued in an amicus brief (written with Adam Theirer of the Progress & Freedom Foundation) filed with the Second Circuit in the Fox Television Stations case, communications media are rapidly converging, while more and more sophisticated user empowerment tools (e.g., parental controls like the V-chip or Internet filtering software) are increasingly allowing individuals, including parents, to control what content enters the home. The Second Circuit said “technological advances may obviate the constitutional legitimacy of the FCC’s robust oversight.” We think they will. Moreover, CDT has consistently argued that viewer and user education, coupled with robust user empowerment tools, can protect kids while also respecting the fundamental right to freedom of expression.

This entry was posted on Tuesday, July 17th, 2007 at 4:19 pm and is filed under Free Expression. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.