The First Amendment wins one

Bravo. The Court of Appeals has struck down the FCC’s indecency rule — specifically, its fines for “fleeting expletives” — as “unconstitutionally vague.”

No shit.

Fox is the official victor here. The other networks also win. But we all win whenever the First Amendment does.

The Appeals Court, to its credit, notes how much media and the country have changed since George Carlin first uttered his seven dirty words on radio and the Supreme Court blushed. Says the appeals panel:

The Networks argue that the world has changed since Pacifica and the reasons underlying the decision are no longer valid. Indeed, 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 undoubtedly possessed 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, offering access to everything from viral videos to feature films and, yes, even broadcast television programs. As the FCC itself acknowledges, “[c]hildren today live in a media environment that is dramatically different from the one in which their parents and grandparents grew up decades ago.”

Nonetheless, the Supreme Court’s doctrine in the Carlin decision stands. But this court is not reinterpreting that rule of law. Instead it finds that the FCC’s police is “impermissibly vague.” That is: “A law or regulation is impermissibly vague if it does not ‘give the person of ordinary intelligence a reasonable opportunity to know what is prohibited.'” And the First Amendment requires extra attention to protection from such vagueness. The court said:

We agree with the Networks that the indecency policy is impermissibly vague. The first
problem arises in the FCC’s determination as to which words or expressions are patently offensive. For instance, while the FCC concluded that “bullshit” in a “NYPD Blue” episode was patently offensive, it concluded that “dick” and “dickhead” were not. Other expletives such as “pissed off,” up yours,” “kiss my ass,” and “wiping his ass” were also not found to be patently offensive…. Thus, the word “bullshit” is indecent because it is “vulgar, graphic and explicit” while the words “dickhead” was not indecent because it was “not sufficiently vulgar, explicit, or graphic.” This hardly gives broadcasters notice of how the Commission will apply the factors in the future. The English language is rife with creative ways of depicting sexual or excretory organs or activities, and even if the FCC were able to provide a conew offensive and indecent words are invented every day….

The same vagueness problems plague the FCC’s presumptive prohibition on the words “fuck” and “shit” and the exceptions thereto. Under the FCC’s current policy, all variants of these two words are indecent unless one of two exceptions apply. The first is the “bona fide news” exception, which the FCC has failed to explain except to say that it is not absolute. The second is the artistic necessity exception, in which fleeting expletives are permissible if they are “demonstrably essential to the nature of an artistic or educational work or essential to informing viewers on a matter of public importance.”

That’s how Saving Private Ryan got away with “fuck” and “shit” while on The Blues, they were dirty. In other words: when white people say them, the words are clean, but not when black people say them. Says the court: “The FCC created these exceptions because it words would raise grave First Amendment concerns.” Yup.

The policy may maximize the amount of speech that the FCC can prohibit, but it results in a standard that even the FCC cannot articulate or apply consistently. Thus, it found the use of the word “bullshitter” on CBS’s The Early Show to be “shocking and gratuitous” because it occurred “during a morning television interview,” before reversing itself because the broadcast was a “bona fide news interview.” In other words, the FCC reached diametrically opposite conclusions at different stages of the proceedings for precisely the same reason – that the word “bullshitter” was uttered during a news program. And when Judge Leval asked during oral argument if a program aboutthe dangers of pre-marital sex designed for teenagers would be permitted, the most that the FCC’s lawyer could say was “I suspect it would.” With millions of dollarAmendment values at stake, “I suspect” is simply not good enough.

Importantly, the court recognizes that the FCC has chilled speech. CBS affiliates would not air a 9/11 documentary because it contained curse words — and I can’t imagine a better cause for them. As I argued in this column, bullshit is political speech. Sandra Loh was fired from an NPR station because she said a bad word. “Broadcasters,” the court says, “may well decide not to invite controversial guests on to t heir programs for fear that an unexpected fleeting expletive will result in fines.” A station did not air Pat Tillman’s funeral because of family members’ grief and language. Fix didn’t air a repeat of a That ’70s Show episode — a Kaiser Family Foundation award winner — that dealt with masturbation. They were no longer masters of their domain.

Sex and the magnetic power of sexual attraction are surely among the most predominant themes in the study of humanity since the Trojan War. The digestive system and excretion are also important areas of human attention. 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. To place any discussion topics at the broadcaster’s peril has the effect of promoting wide self-censorship material which should be completely protected under the First Amendment.

All is not won. The Appeals Court says the FCC could create constitutional policy — this just isn’t it. And this could return to the Supreme Court. But for now, let’s all say a celebratory “BULLSHIT.”

  • http://chuck006.tumblr.com/ Chuck

    Jeff,

    What Appeals Court heard the case? I am betting not the 9th.

    • http://www.buzzmachine.com Jeff Jarvis

      Sorry. My omission. Second Circuit.

  • http://stilgherrian.com Stilgherrian

    Jeff, I’d like to emphasise your point about restrictions on “profanities” in broadcast speech being restrictions on free speech. People who speak a certain way — with more “profanities” to use a word which seems distinctly American to me — don’t get to air their views because of the way they speak. Their stories are not genuinely told in drama. They are absent from democratic discourse.

    What language is considered “inappropriate” is largely based on historical class differences. You can trace some of it back to England in 1066. The words of the Norman French overlords were acceptably “polite”. But the Anglo-Saxon words for the same thing, perfectly acceptable amongst that language’s speakers, were deemed “inappropriate” because they were “common”. In the US that’s all presumably also bundled up with race, and its own nasty history.

    The result is that white middle-class viewpoints dominate. The status quo is supported.

    I’m looking at this from Australia, where we have an earthier attitude to language and clearly more liberal broadcast laws. Network TV may air the f-word and even the c-word unbleeped provided it’s after 9.30pm and the program is appropriately flagged MA15+ for “strong language”. It wasn’t always like this, of course, but it’s been a good three decades since we decided that broadcast TV needed to reflect the reality of all Australians, not just those who spoke “properly”.

    Mind you, I suppose us Australians have a global reputation for swearing. This authentic recording of Train Girl [NSFW, as the saying goes], an angry young working-class woman on a train, someone we’d call a “bogan”, has more profanity per square inch than even George Carlin could muster. But could you imagine her ever having her own speech broadcast?

  • http://freakgeek.ly Ed Brown

    As Penn would say:
    Censorship… is BULLSHIT!

  • http://scottmag.com Scott Magoon

    “CBS affiliates would not air a 9/11 documentary because it contained curse words — and I can’t imagine a better cause for them.”

    Amen, brother.

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  • Iggy

    Didn’t Lenny Bruce say the original 7 dirty words (I think it may have been more than 7 at the time)?

    • http://www.buzzmachine.com Jeff Jarvis

      George Carlin said them on Pacifica Radio; that’s what led to the case.

  • Vadim

    Once the floodgates will be opened, curse language will fill the media. How is this related to the First Amendment, beats me. This “opening” of permissible has been played before and its process is quite standard: the curse words are used to express an utmost emotional distress, and, as such, are used sparingly. Once the media is free to use these words, they become “normal”, no longer carrying this meaning. Thus two processes are triggered (a) the curse words are replaced by the new, more graphic versions, as the need to express distress stays, but old words are no longer sufficient and (b) old curse words now express mild emotions and are being used as fillers in the speech, similar to the words “like” (witness the modern usage of “shit”). Keeping the curse words locked outside of MSM therefore is good thing, in my opinion.

    If a political message needs curse words to be expressed, something must be seriously wrong with both the message and the messenger. So the case had nothing to do with the freedom of speech and everything with adding a bit more shock value to the current sad state of TV.

    • Chris

      @Vadim: I live in Azstria, where there is no law prohibiting curse words on radio ot TV at all – yet I don’t hear a lot of cursing. the problem does not even exist.

      • Chris

        Austria that is