FCC Indecency Guidelines Ruled Unconstitutional

[Shawn Hopkins]

It's a big two letter expression I can't post here to the P to the T to C. A court ruled the guidelines were unconstitutionally vague. If you read the whole article it seems like they've struck down the entire rule about indecency before 10 p.m., too, not just the controversial "fleeting expletives" issue, where say maybe a rock star will say the F word at a live awards show and cause a $325,000 fine for the network. I agree with the court on this one, anything that can be shown to cause such a chilling effect on free speech needs to be reassessed. What do you think?

http://www.washingtonpost.com/wp-dyn/content/article/2010/07/13/AR2010071306623.html

An occasional curse word or even Janet Jackson's infamous "wardrobe malfunction" on prime-time TV shouldn't bring down the wrath of the Federal Communications Commission, a federal court ruled Tuesday.
The U.S. Court of Appeals for the 2nd Circuit said the agency's rules on indecency are too vague and violate the First Amendment, undermining the government's primary tool for policing civility over the airwaves.

With its decision, the three-judge panel handed a victory to broadcasters such as Fox, CBS and ABC, which had petitioned the court to challenge the agency's muscled-up approach of imposing steep fines for impromptu expletives and sexual content

Broadcasters had taken their arguments against the FCC's policy to the Supreme Court, which ruled in favor of the agency April 29. It said the FCC followed administrative procedure, but it did not address whether the rules were constitutional -- an issue it sent to the appeals court.

On Tuesday, the appeals judges called the FCC's policy, in place since 2004, "unconstitutionally vague, creating a chilling effect that goes far beyond the fleeting expletives at issue here." The vagueness left broadcasters uncertain about what they could air, which impinged on their freedom of speech, the judges said.

[Peter Paltridge]

Does this essentially roll back all broadcast censorship, or are things going to continue as normal?

[Shawn Hopkins]

Does this essentially roll back all broadcast censorship, or are things going to continue as normal?

As far as I understand it just rolls back federal enforcement, unless the FCC appeals and another court has a different ruling. Networks will still have their own censorship policies. Although they could theoretically relax them and do an episode of Family Guy with the F word, I guess. But all cable networks could air indecent material all day if they wanted to because they're not constrained by FCC guidelines. Most of them don't.

[hobbyfan]

The PTC calls the ruling a "slap in the face". What did you expect from them, other than :crying: :crying: :crying: :crying: :crying: for hours on end? ;) :p :D

[launchpad20]

Maybe this will open the door for non E/I cartoons to sneak back into broadcast TV, but I'm not gonna get my hopes up. :sad:
But all cable networks could air indecent material all day if they wanted to because they're not constrained by FCC guidelines. Most of them don't.That means E! will continue to glorify Lindsay Lohan's reckless antics. :rolleyes::shame:

[Tay the Cat]

That means E! will continue to glorify Lindsay Lohan's reckless antics. :rolleyes::shame:
Joel McHale would like to have a word with you on that.

[Shawn Hopkins]

Maybe this will open the door for non E/I cartoons to sneak back into broadcast TV, but I'm not gonna get my hopes up. :sad:That means E! will continue to glorify Lindsay Lohan's reckless antics. :rolleyes::shame:

This has nothing to do with E/I rules. And it has nothing to do with cable networks focusing on a celebrity you don't like, although I don't see why you would want the government to have such broad censorship controls that they could directly tell news organizations what to cover.

Here's the full PTC statement. You can't see me, but I'm making the QQ more gesture. They're the ones that forced this issue by spending the last several years mounting an avalanche of protests intended to force their moral standards on the public and it shouldn't be really surprising to them that their attempts at control might eventually go too far. Also, there's one major lie in this statement when they say the Supreme Court upheld the broadcast decency law. The Supreme Court actually considered a narrow issue, it kicked the constitutionality of the law down to a lower court, this court, which found it unconstitutional.

http://www.parentstv.org/PTC/news/release/2010/0713.asp

[Matt Hazuda]

All the FCC has to do is come up with a firm set of guidelines and stop being so wishy-washy and refusing to put an official "You can't say this" list in writing. Of course this list then can be challenged under first amendment violations, but it's the FCC's job to defend the list.

tl;dr: The FCC needs to grow a spine and and do things the right way.

[Wounded_Dragon]

The FCC has only been wishy washy because politicians want that wiggle room to "crusade" against "evil" on television.

[hobbyfan]

Here's a simple set of guidelines. So easy, even a 5 year old can understand.

Save the coarse "adult" language for 10 pm-6 am (ET). NYPD Blue, remember, aired at 10 virtually throughout its run, and yet, the namby-pambies from the PTC and other activist groups whined about its content just the same.

8-9 should be the family hour, as it was in the 70's & 80's. It would expand to 7-9 on Sundays. 9-10 is a transitional hour where most kids under the age of, say, 12, would be headed off to bed if the parents are smart enough to set those guidelines. I should know. I had that when I was at that age.

If all the networks followed those guidelines, 1) it'd hasten MyNetworkTV's demise and 2) CW would be in trouble, because they have little to offer families these days.

[Shawn Hopkins]

All the FCC has to do is come up with a firm set of guidelines and stop being so wishy-washy and refusing to put an official "You can't say this" list in writing. Of course this list then can be challenged under first amendment violations, but it's the FCC's job to defend the list.

tl;dr: The FCC needs to grow a spine and and do things the right way.

I dunno, doesn't this passage from the article:

The judges said the FCC hasn't given clear guidelines on its two main tests for indecency: whether material describes or depicts sexual or excretory organs or activities, and whether a broadcast is "patently offensive as measured by contemporary community standards."


"The English language is rife with creative ways of depicting sexual or excretory organs or activities," the judges wrote, "and even if the FCC were able to provide a complete list of all such expressions, new offensive and indecent words are invented every day."

Seem to indicate that the court is skeptical they could ever have a list that works as intended, because language changes.


Here's a simple set of guidelines. So easy, even a 5 year old can understand.

Save the coarse "adult" language for 10 pm-6 am (ET). NYPD Blue, remember, aired at 10 virtually throughout its run, and yet, the namby-pambies from the PTC and other activist groups whined about its content just the same.

8-9 should be the family hour, as it was in the 70's & 80's. It would expand to 7-9 on Sundays. 9-10 is a transitional hour where most kids under the age of, say, 12, would be headed off to bed if the parents are smart enough to set those guidelines. I should know. I had that when I was at that age.

If all the networks followed those guidelines, 1) it'd hasten MyNetworkTV's demise and 2) CW would be in trouble, because they have little to offer families these days.

I don't know if you read the article, but your suggestion of a vague prohibition against "coarse language" before 10 p.m. is what exists now and what was found unconstitutional. And a court already threw out the idea of imposing a "family hour" in the 1970s.

[mumbo]

But broadcasters said the effect of the court decision wouldn't change content on television.

"It's legally permissible for stations to air uncut R-rated movies after 10 p.m. -- or to have Letterman and Leno dropping F-bombs," said Dennis Wharton, spokesman for the National Association of Broadcasters. "But you never see or hear that material from broadcasters because of the relationships and expectations we've built with our audiences over decades."
Pretty much what I expected of this. Broadcasters aren't going to suddenly jump up and down and throw porn out there, because they're still catering to the public and they still have to hear complaints and keep their viewers happy and so on. They just won't have the giant hammer of the law crashing down on them.

I guess the biggest change is that they won't need to panic every time there's a slip-up on a live broadcast, like the F-bomb on SNL last season.

The whole "decency" thing is way too ridiculously vague to even try to regulate the way they wanted to anyway. I mean, the line is impossible to find in many cases. I'm even puzzled by some of the choices of what words we're allowed and not allowed to use on this forum (don't smite me, just saying!).

[Six Year Man]

So, will this effect the 20 (?)second delay on live broadcasts?

[launchpad20]

although I don't see why you would want the government to have such broad censorship controls that they could directly tell news organizations what to cover.I actually don't want more government control of the airwaves, but your right. Some of my comments almost sound like I do, and have clouded my judgement a bit. :sweat: After reading the PTC statement, I remember reading an article Jeff Harris wrote about 'safe harbor' laws regarding networks airing edgy programing in different time zones.
Joel McHale would like to have a word with you on that.Yeah, I know, but sometimes I wonder why he isn't working at Comedy Central instead of E!. :shrug:

[Kindness King]

You can count on the PTC's former head L. Brent Bozell writing an angry article about this soon.

I love their rhetoric about the public owning the airwaves, which is just laughably ignorant.

[jph139]

The guidelines for obscenity and indecency in the US have always been annoyingly vague. I mean, when Potter Stewart (Supreme Court Justice behind classifying obscenity) was asked on how they decide what is an isn't indecent was "I know it when I see it." I'm glad they're sorting that kind of thing out, even if it is just on TV.

[G. Wen]

You can count on the PTC's former head L. Brent Bozell writing an angry article about this soon.

I love their rhetoric about the public owning the airwaves, which is just laughably ignorant.
The public don't own the airwaves, that would be communism, and as a conservative, Bozell should be against that.

[Kindness King]

You can count on the PTC's former head L. Brent Bozell writing an angry article about this soon.

I love their rhetoric about the public owning the airwaves, which is just laughably ignorant.


Speaking of which....




Judges Find Dignity in Profanity
Federal appeals court judges in Manhattan shredded the FCC's lamely enforced rules against broadcast indecency. Profanity was somehow associated with "the most important and universal themes in art and literature."
By: L. Brent Bozell
July 17, 2010 11:07 ET




On July 12, the Second Circuit Court of Appeals in New York City warmly offered the TV networks exactly what they wanted: the shredding of the FCC's lamely enforced rules against broadcast indecency. As of now, the network stars can swear at will in front of impressionable children. These judges did not rule narrowly on the focus of the case – “fleeting expletives” that networks aired unintentionally. They ruled broadly in favor of all expletives.


There’s no other way to say this. The ruling is idiocy.


Judge Rosemary Pooler, writing for a unanimous three-judge panel, concluded the FCC's prohibitions against F-bombs and S-words are somehow “unconstitutionally vague.” She claimed they weren't suggesting it was impossible for the FCC to construct a constitutional decency regime. But the decision made it clear these judges don't think the FCC should even bother.


“The observation that people will always find a way to subvert censorship laws may expose a certain futility in the FCC's crusade against indecent speech,” Pooler wrote. Note the wording. “Censorship laws.” “Crusade.” It is precisely the language of Hollywood lobbyists.



Pooler, a Bill Clinton appointee who ran for Congress as a liberal Democrat and lost in both 1986 and 1988, concluded the judicial opinion by actually trying to paint artistic gloss and literary glitter on profanity. She declared the FCC “chills a vast amount or protected speech dealing with some of the most important and universal themes in art and literature.” How can we dress up the F-bomb in artistic terms? Here’s how: “Sex and the magnetic power of sexual attraction are surely among the most predominant themes in the study of humanity since the Trojan War.” How do we excuse the S-word? I am not making this up: “The digestive system and excretion are also important areas of human attention.”



The judges ruled with lingo straight from the Hollywood playbook. When the Supreme Court allowed decency enforcement in 1978, it was in the prehistoric era of technology. The Internet was in its infancy and people didn’t watch videos on laptops or mobile phones. New technology (and especially the ascent and even equivalency of cable TV) therefore make decency enforcement as pointlessly passe as polyester leisure suits.




The more cars we put on the road, the more driving infractions we have. Should speeding laws be banned?




The judges had more to say, unfortunately. Trying to prevent dirty words is apparently outdated daily by the newest slang. “The English language is rife with creating ways of depicting sexual or excretory organs or activities,” Pooler lectured, “and even if the FCC were able to provide a complete list of all such expressions, new offensive and indecent words are invented every day.”




Therefore, it’s okay to use language in front of a six-year-old child that would have my syndicator fire me were I to include it in this newspaper column.




These judges clearly have a slant toward Hollywood excess. Pooler’s opinion mocked the FCC for suggesting TV executives are more interesting in sleazy ratings gambits than decency: “While the FCC characterizes all broadcasters as consciously trying to push the envelope on what is permitted, much like a petulant teenager angling for a better curfew, the Networks have expressed a good faith desire to comply with the FCC's indecency regime.”




Someone as naive – no, someone as ignorant – as this should not be writing opinions. I suspect the industry heads burst out laughing when they read it.




Anyone who's had half an eye on broadcast television in the last ten years would not be so ridiculous as to suggest that Hollywood hasn't been trying to push the envelope on what frontier of dirty language, sex, and violence it can surpass. Of course, broadcasters came into the courtroom to tell judges they’ve made a “good faith” effort. But the record shows – the useless V-chip, the corrupted ratings system, and so much else – that they could care less.




After the decision, the broadcasters kept the phony routine going, insisting that nothing would change now on TV. "It's legally permissible for stations to air uncut R-rated movies after 10 p.m. -- or to have Letterman and Leno dropping F-bombs," said Dennis Wharton, a spokesman for the National Association of Broadcasters, told The Washington Post. "But you never see or hear that material from broadcasters because of the relationships and expectations we've built with our audiences over decades."




If there were such an “expectation” over “decades,” it was the expectation that the networks could at least draw a line of decency at the nastiest, dirtiest words in front of children. But they’ve spent years now and fortunes of money advocating in court for the right to proclaim profanities at children in every hour of the broadcast day, and when they win, they suggest they never intend to push that envelope? Please.










Someone's not bitter. ;)



EDIT:Why did the rest of my post come out black?

[Mandouga]

"Predictable", to say the least, I guess.

At any rate, as someone previously said, the networks/local TV stations aren't going to be doing things any differently than before, they just won't have to worry about the constant threat of six-figure fines because of "accidents" that occur. In other words, I really don't think we're going to be, for instance, hearing unbleeped "cluster F bombs" on terrestrial TV any time soon. The networks are much smarter than that (as are the local TV stations). At least, I think they are...

[Wounded_Dragon]

Hopefully it will mean less posturing by politicians trying to look good by "cleaning up" television.