On June 4th, the Second Circuit federal appeals court issued a brilliant opinion
that called into question the FCC's constitutional authority to regulate indecent but otherwise legal speech uttered on broadcast programs. CDT filed an amicus brief in support of the networks in the case of Fox Television v. FCC
in which we argued that technological advancements and convergence have eroded the basis of the commission's authority to regulate broadcast content. We had hoped for a simple footnote acknowledging this point. Instead, we were thrilled that the Court of Appeals indulged in nine pages of discussion of this point, laying the foundation for a new breed of challenges to FCC censorship.
Since 1978, the Supreme Court has permitted the FCC to regulate "indecent" speech uttered over the airwaves. While indecent speech is generally protected by the First Amendment, the Court had found that the broadcast medium is uniquely pervasive in that it extends into the privacy of the home and is easily accessible to children. Thus, in FCC v. Pacifica Foundation
, the Court agreed with the FCC that it had the constitutional authority to punish Pacifica for broadcasting George Carlin's "Filthy Words" monologue in which he repeatedly uttered seven expletives within a 12-minute show that aired at 2:00 in the afternoon.
The Fox case centered on "fleeting expletives" -- that is, swear words that are uttered once, rather than repeatedly. At the 2002 Billboard music awards, Cher responded to her critics with a single expletive. Similar incidents were repeated by other televised speakers at the 2003 Billboard Music awards, in various episodes of NYPD Blue, and on CBS's The Early Show. The FCC had found all of these utterances indecent. The Second Circuit, however, held that the FCC's decision was arbitrary and capricious under the Administrative Procedure Act (APA). The Court noted that the FCC -- up until quite recently -- had a policy that unrepeated swear words were not indecent. The Court held that the FCC violated the APA because it made an about-face in policy without sufficient justification, and remanded the case back to the agency to come up with a reasoned explanation for its policy change. While CDT supports this holding, it was not the best part of the opinion.
The Second Circuit went on to make several observations that supported the Court's skepticism that the FCC will ever be able to "provide a reasoned explanation for its 'fleeting expletives' regime that would pass constitutional muster." Most importantly, the Court said "technological advances may obviate the constitutional legitimacy of the FCC's robust oversight."
The Court explained that "The proliferation of satellite and cable television channels -- not to mention internet-based video outlets -- has begun to erode the 'uniqueness' of broadcast media, while at the same time, blocking technologies such as the V-chip have empowered viewers to make their own choices about what they do, and do not, want to see on television."
This is precisely the point CDT made in its amicus brief
(see pp. 18-26). CDT argued that the convergence of entertainment technologies -- broadcast, cable, satellite, Internet -- is making distinctions between them meaningless, especially distinctions that lead to vastly different policy and legal frameworks. CDT also argued, and has advocated for a long time, that individual education and user empowerment tools are more effective at protecting children -- those in front of the TV or online -- than an overzealous, politically influenced government agency. CDT believes that parental choice and control is the value here - not paternalism. And technologies like the V-chip and personal video recorders (PVRs), and filtering software in the online context, are increasingly enabling parents to take control over what they and their children watch. In fact, the Second Circuit quoted U.S. v. Playboy
(2000) in which the Supreme Court wrote, "Technology expands the capacity to choose; and it denies the potential of this revolution if we assume the Government is best positioned to make these choices for us."
We think that the Second Circuit hit the nail squarely on the head, and are hopeful that the Fox opinion will influence future applications of the First Amendment in our rapidly changing and converging technological world.