On June 4, 2007, the U.S. Court of Appeals for the Second Circuit, in a 2-1 ruling, vacated the FCC’s three-year old policy that makes broadcasters liable under the FCC’s indecency regulations for airing "fleeting expletives" -- even when such words are not specifically sexual, in context, and are broadcast during live programming. The court found that the FCC had failed to explain adequately why it reversed its prior thirty-year policy of restrained enforcement, under which such brief, non-sexually explicit utterances (the “f-word” and its variants, for example) during broadcast programming were not subject to monetary penalties as indecent speech.
In non-binding discussion not part of the court’s basis for its ruling, the court also expressed its view that the inherent vagueness of the FCC’s indecency standard, with the attendant risk of subjective enforcement, cast doubt on the Constitutional acceptability of the FCC’s enforcement scheme. In addition, the court questioned whether the increasing inability to distinguish broadcasting from other audio and video delivery technologies, in terms of pervasiveness and accessibility to children, as well as the increased capability for parents to block specific content, may soon erode entirely the past Constitutional basis for more intrusive FCC regulation of broadcast content in relation to other forms of electronic and print speech. Click here to review our client memo on this development or here to view a copy of the 2nd Circuit’s decision.
