Reacting to a Supreme Court order to take a new look at “indecency” on radio and TV, the Second Circuit Court suggested on Tuesday that constitutional law on free speech may need to be updated for the Digital Age, especially now that  “new offensive and indecent words are invented every day.”  Even so, applying First Amendment doctrine as it now exists, the three-judge panel struck down the Federal Communications Commission’s ban on the day and evening broadcast of even single “fleeting expletives.”  If the Obama Administration plans to continue defending the ban, the case could be on its way back to the Supreme Court.

In a 32-page opinion that makes liberal use of the actual four-letter versions of the  “F-Word” and “S-Word” and variations of them, the Circuit Court said the FCC’s six-year-old ban is unconstitutionally vague, because it is littered with exceptions that make it unclear to broadcasters what is allowed and what is not.  The case is Fox Television Stations, et al., v. FCC (lead Circuit Court docket is 06-1760).  With “massive fines” and free speech rights vitally at stake, the Court said, the broadcast industry is taking the option of censoring itself — including its news programs — to avoid violating the policy.

The Circuit Court looked back, quite skeptically, at the Supreme Court’s 1978 Supreme Court ruling that first upheld FCC authority to regulate “indecent” radio or TV broadcasts (FCC v. Pacifica Foundation), and noted that broadcasters and the FCC are still in dispute about just how much authority the Commission has under that ruling.   But the Circuit Court said it need not resolve that dispute, since it found that the current policy adopted in 2005 simply fails a traditional First Amendment test for vagueness.

The panel, in an opinion written by Circuit Judge Rosemary S. Pooler and joined by Circuit Judge Peter W. Hall and Senior Circuit Judge Pierre N. Leval, readily accepted the broadcast networks’ argument that “the world has changed” since the Pacifica decision.   It commented:

“We face a media landscape that would have been almost unrecognizable in 1978.  Cable television was still in its infancy.  The Internet was a project run out of the Department of Defense with several hundred users.  Not only did Youtube, Facebook, and Twitter not exist, but their founders were either still in diapers or not yet conceived.  In this environment, broadcast television ujndoubtedly possessed as ‘uniquely pervasive presence in the lives of all Americans.’

“The same cannot be said today.  The past thirty years has seen an explosion of media sources, and broadcast television has become only one voice in the chorus.  Cable television is almost as pervasive as broadcast — almost 87 percent of households subscribe to a cable or satellite service — and most viewers can alternate between broadcast and non-broadcast channels with a click of their remote control….The internet, too, has become omnipresent, ofering access to everything from viral videos to feature films and, yes, even broadcast television programs.”

It went on to note that technological change has given parents clear control over what their children can see and hear on television.

Noting that the Supreme Court had considered such changing circumstances in deciding to give cable TV full, rather than qualified, First Amendment protection from government regulation, the Circuit Court said it could “think of no reason why this rationale for applying strict scrutiny in the case of cable television would not apply with equal force to broadcast television” in light of the parental control technology now available.

Still, it conceded that, as a lower federal court, it was bound by Supreme Court precedent, “regardless of whether it reflects today’s realities.  The Supreme Court may decide, in due course, to overrule Pacifica and subject speech restrictions in the broadcast context to strict scrutiny.” But it has not done so yet, so, the panel said, it was bound not to anticipate such a change.

But, rather than sort out just what Pacifica means in the present communications environment, the panel simply resorted to vagueness doctrine, and found that the Commission had been unable to show, with any clarity, just what is now banned, and what is now allowed, on radio and TV in either entertainment or news programming.  It thus nullified the policy outright.

The Circuit Court had the case returned to it by the Supreme Court in April last year in a 5-4 decision.  The majority ruled then that the FCC’s ban on “fleeting expletives” did not violate the federal statutes under which the FCC operates.  But that ruling did not resolve the broadcast industry’s constitutional challenges to the ban, leaving that to the Second Circuit in the first instance, leading to Tuesday’s ruling.

The FCC now has the option of seeking en banc review by the full Second Circuit, or of taking the case on to the Supreme Court, if it wishes to try to resurrect the ban.

Posted in FCC v. Fox Television Stations, FCC v. Fox, Cases in the Pipeline