In a sign that we have finally embraced the first amendment, ratified 209 years ago, the U.S. 2nd Circuit Court of Appeals has reversed the policy of the FCC to crack down on "vulgar" speech in live TV and radio broadcasts. The ruling did not address the U.S. Supreme Court decision empowering the FCC to police the airwaves for objectionable content in general, but at least recognized the reality that swearing done spontaneously, that is out there for just a moment, is not so detrimental to society that the broadcasters need be punished for having it aired. The court's ruling is a good first step in finding a balance between protecting the unwary public from expletives and preventing a chilling effect that will limit free expression.
This case arose as a result of a spate of instances as awards shows and other live events where a brief obscenity was uttered by a presenter or winner. In past years, performers such as Bono and Cher, and others with last names, uttered fleeting expletives while on live broadcasts. Bono has said the phrase "f---ing brilliant" at the 2003 Golden Globes and that was enough to rally the full power of the federal government to punish the broadcaster for airing such vulgarity.
Under rules implemented the next year, profanity referring to sex or excrement was deemed always indecent. Broadcasters were fined for any use of any word or phrase that fell within this broad, generalized definition, even in just an unplanned and momentary manner. This policy was brought up for review before the appeals court in a case brought by Fox and other networks.
Speaking for the three-judge panel, U.S. Circuit Judge Rosemary Pooler wrote, "The FCC’s policy violates the First Amendment because it is unconstitutionally vague, creating a chilling effect that goes far beyond the fleeting expletives at issue here.”
"By prohibiting all 'patently offensive' references to sex, sexual organs and excretion without giving adequate guidance as to what 'patently offensive' means, the FCC effectively chills speech, because broadcasters have no way of knowing what the FCC will find offensive," the appeals court wrote.
The opinion went on, "To place any discussion of these vast topics at the broadcaster's peril has the effect of promoting wide self-censorship of valuable material which should be completely protected under the First Amendment."
The panel determined that the existing policy, penalizing broadcasters and implementing fines for any suspect utterance was implemented inconsistently and in situations where the alleged harm was so small as to not outweigh the interests of free speech.
The panel noted that swear words were permitted in the broadcast of the movie Saving Private Ryan but not in a PBS miniseries -- leaving broadcasters in the doubt about what was permitted when. As Judge Pooler wrote, "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." It was clear to the panel that the fear of the power of the FCC was affecting broadcast decisions detrimentally. "Indeed, there is ample evidence in the record that the FCC's indecency policy has chilled protected speech."
Viewers of live, unscripted shows should realize that spontaneity comes with some risk and if they are worried about seeing or hearing something that might offend their senses, they can choose not to watch or listen. But to penalize broadcasters for the actions of others, often made in the heat or excitement of the moment, will discourage broadcasting of these live events and will leave us with more prepackaged, rehearsed and unreal shows where there is little risk of anything surprising happening.
No one was seriously damaged by Bono's fleeting utterance of a curse word. There was a real moment of joy and exuberance and there should be more of that aired. There are hundreds of TV and radio channels and if you're worried about what you might hear on one in a "live" moment -- then change channels. But let's trust that our country will survive a little cursing now and then more than we will the slow curtailment of our rights of free expression.