Fleeting Expletives Legislation Talking Points
Why
S. 1780 (the “fleeting expletives” bill) is Unwise, Unnecessary, and
Unconstitutional S. 1780 would reinstate the Federal
Communications Commission’s (FCC) ability to prohibit the use of any profanity
from 6 a.m. to 10 p.m. on broadcast television. The bill is unwise, unnecessary,
and unconstitutional.
For nearly thirty years, the FCC appropriately found that
the broadcast of a fleeting expletive did not implicate the indecency
rules. Then, in 2003, in Fox
Television Stations v. FCC, the FCC abruptly changed that policy, finding
that any use of certain words presumptively constituted indecency. The FCC has emphasized, however that
“such words may not be profane in specified contexts.” Thus, broadcasters are
left with little guidance as to what particular contexts make certain expletives
“profane” or “indecent.” In June, 2007, the United States Court of Appeals for the
Second Circuit found that the FCC’s policy on “fleeting expletives” was
arbitrary and capricious and without foundation. Consequently, the court
invalidated the FCC’s findings of indecency imposed on several examples of
fleeting expletives, and asked the FCC to provide its basis for changing its
policy. The court also noted that current law made it highly unlikely the FCC
would be able to provide a basis for its decision that would withstand First
Amendment scrutiny. S. 1780 Is Bad Policy - S.
1780 is little more than an attempt to take away the courts’ jurisdiction over
this matter in order to give the FCC cover for its constitutionally flawed
indecency policy.
- While
S. 1780 may give some legitimacy to the FCC’s rationale for its fleeting
expletives policy, it completely ignores the substantial constitutional
questions raised by the Second Circuit.
- On
September 11, 2007, the Third Circuit heard oral arguments in CBS v. FCC. Many of the same arguments
made successfully in the Second Circuit were made in this case.
- The
FCC chose not to appeal its loss in
the Second Circuit. The Solicitor General’s Office has until October 4 to decide
whether to appeal the Second Circuit decision, and the Third Circuit will not
rule immediately.
- If
the FCC is convinced it is on solid constitutional footing, the appropriate way
to deal with the situation is to appeal an adverse ruling. Passing an
unconstitutional bill does nothing to address the situation.
The Alleged Increase in Complaints About
Indecency Do Not Evidence An Increase in “Indecency” - Much of the alleged
increase results from the change in the way the FCC tallies
complaints.
- In early 2004, the FCC
began counting identical indecency complaints multiple times according to
how many commissioner’s offices and other divisions of the FCC receive the
complaint, instead of as single complaints in accordance with the previous
policy.
- Because
of these changes, between 2002 and 2004, complaints grew by more than 100 times.
However, the number of programs that were the subject of complaints
actually dropped by 20% over the same two-year period.
Parents Already Have Sufficient Tools to
Protect Their Children
- Approximately 85% of
households receive their broadcast television through cable. All of the tools
available to cable (channel blocking, program blocking, and so forth) are
available for broadcast television.
- Technology already
exists to control “fleeting expletives.” Over seven million Americans currently
use TVGuardian systems, which bills itself as “The Foul Language Filter.”
- TVGuardian’s set-top
boxes filter out profanity by monitoring the closed-caption signal embedded in
the video signal and comparing each word against a dictionary of more than 150
offensive words and phrases. If the device finds a profanity in this broadcast,
it temporarily mutes the audio signal and displays a less controversial
rewording of the dialog in a closed-captioned box at the bottom of the screen.
- The device can also be
tailored to individual family preferences to edit out references that some might
consider religiously offensive.
- Between technology and
education, dramatic advances have occurred. Parents have the tools and the power
to protect their children. There is little justification for the FCC acting as
the nation’s “nanny.”
The FCC’s Vague Standards Have Resulted in
Uncertainty About What Constitutes “Indecency”
- The WB network in March
2006 censored an episode of “The Bedford Diaries” over objections by its creator
because of fears that the FCC would impose fines over language and situations
contained in the show.
- Also in 2006, some CBS
affiliates refused to air a documentary on the September 11 terrorist attacks
because of concerns about language used by firefighters portrayed in the
movie.
- In 2004, various ABC
affiliates refused to air “Saving Private Ryan” over concerns that the repeated
use of certain expletives would result in fines.
- Paradoxically, the FCC
found that “Saving Private Ryan” (a fictional work) did not violate indecency
standards even with its repeated use of expletives, but found indecent a
documentary entitled “The Blues: Godfathers and Sons” in which the interviewees
used various expletives.
- More recently, some PBS
affiliates were wary of broadcasting a fourteen hour Ken Burns documentary
entitled “The War,” because it included approximately four profanities.
- S.
1780 does nothing to clear up the confusion about what constitutes indecency. It
merely states that the FCC shall maintain a policy that indecent or profane
material may include a single word or image.
Uncertainty as to what is “indecent” leads to
a
chilling of speech
- Guessing incorrectly
whether a program is or is not “indecent” can have important ramifications for a
broadcaster, including huge fines and possibly loss of its broadcasting license.
- Vague laws and
interpretations create traps for broadcasters because they are unsure what
conduct or speech will constitute indecency. Vagueness chills communications
that may well NOT be indecent or profane, simply because the cost to the
broadcaster of being wrong is too great.
- Vagueness encourages
silence instead of robust debate.
The uncertainty inherent in the definition (or lack thereof) of
“indecency” inevitably leads broadcasters to avoid certain speech. To do
otherwise risks a finding of “indecency” and potentially disastrous
liability.
- All
of this is fundamentally inconsistent with the “uninhibited, robust, and
wide-open” debate contemplated by the First Amendment.
The Foundation of the FCC’s Authority to
Regulate
Indecency Has Crumbled
- The FCC primarily relies
upon FCC v. Pacifica Foundation, 438 U.S. 726 (1978) as its authority to
regulate indecency. Much has changed since 1978 that makes that reliance
constitutionally questionable.
- The
decision was not a strong endorsement of FCC authority. It was a fragmented
decision (5-4) that neither approved a particular standard for
indecency, nor upheld a substantive penalty against the licensee. Since Pacifica, the
Supreme Court has acknowledged that the FCC’s definition of indecency was not
endorsed by a majority of the Justices, and has repeatedly described the
decision as an “emphatically narrow holding.”
- The
rationale for the Pacifica decision, that “the
broadcast media have established a uniquely pervasive presence in the lives of
all Americans,” is highly questionable in this era of cable, satellite and the
Internet, all of which compete with broadcast television.
- Despite
the pervasiveness of all media in general, the government has only been allowed
limited content regulation of the broadcast media.
- The Court since
Pacifica
has invalidated government-imposed indecency restrictions on cable television,
despite its “pervasiveness.”
- In
Reno v. ACLU, the Court for the first time subjected the indecency
definition (in the Internet context) to rigorous scrutiny, and by a vote of 9-0,
found it to be constitutionally deficient.
- For all of these
reasons, the Second Circuit opined that it was unlikely the FCC could
constitutionally support its position regulating fleeting
expletives.
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