Judges vs. the FCC

The nation's leading champions of televised profanities celebrated a victory for the “First Amendment” when the Manhattan-based Second Circuit Court of Appeals rebuffed the FCC's attempt to fine Fox Entertainment for dropping F- and S-bombs on prime-time television by Cher and Paris Hilton's pal Nicole Richie, in front of millions of young children.

Both times the cussing came during live awards programs, neither of which contained even a five-second delay. Fox never felt obligated to do anything but offer insincere apologies for what it aired and still continues to refuse to enact a time delay to prevent this from happening in the future.

The federal judges who ruled against the FCC suggested the agency's rulings were “arbitrary and capricious.” But is there anything more arbitrary and capricious than an egotistical celebrity dropping the F-bomb on national TV? Or the network refusing to administer a tiny delay?

Pardon me if I can't imagine Thomas Jefferson & Co. pledging their lives, their fortunes, and their sacred honor for the valiant cause of transmitting the potty mouths of washed-up pop singers and spoiled-rotten mall princesses into millions of American households. Why the hurrahs? It's a bit like cheering dog owners who never clean up their pet's droppings on other people's lawns. Maybe now that Paris is out of prison, she'll have learned new words she can teach little children.

In the 2-1 ruling, dissenting judge Pierre Leval, a Clinton appointee, found that the majority failed to consider that the FCC made every effort not to be “arbitrary and capricious.” It openly admitted a change in policy – that a single use of the F-word can itself be an indecency violation, because the word always carries an offensive sexual connotation. It laid out its rationale in detail. It explained how there would be exceptions granted by the context of the speech – such as in news broadcasts. Courts are not supposed to overrule agencies just because they would make a different ideological decision.

But the judges in the majority delighted The New York Times by going political, referring favorably to NBC's legal argument that the F-bomb does not normally have a sexual meaning, and the S-bomb doesn't have an excretory meaning, since President Bush and Vice President Cheney have “used variants of these expletives” in public. “If Bush Can Blurt Curse, So Can Network TV,” the Times wrote in its Page One headline. (That presidential attack line is mildly surprising since one of the pro-cursing judges, Peter W. Hall, is an appointee of one George W. Bush.)

This is just silly political point-scoring, and not a reasonable comparison to broadcast indecency. Bush and Cheney were not using these words on live prime-time television, dropping obscenities in election-year debates or State of the Union speeches in front of millions of children. These outbursts were in private settings and publicized by political opponents who actually revere the dirty words as vaunted free speech, but wanted to embarrass the conservative leaders with their traditional-values base.


The court's ruling against the FCC also claimed that part of the “arbitrary and capricious” nature of that regulation is the emergence of new technologies, and that the rise of cable TV and the Internet make the old rules against broadcast indecency increasingly discriminatory against the broadcast networks, since it can be argued that broadcast TV is not “uniquely pervasive” and “uniquely accessible to children.” The answer, the judges suggested, came in gloriously empowering “blocking technologies” like the V-chip.


In its statement after the court decision, as it laughably described celebrity curse words as “artistic expression,” Fox also hailed that viewers can serve themselves “through the many parental control technologies available, what is appropriate viewing for their home.”


This is rubbish, a deliberate falsehood. Both the judges and the networks know that the V-chip would have in no way stopped an unexpected celebrity curse word from hitting a child's ears. The Fox awards shows were not coded in a way that would have allowed V-chip technology to block the show for coarse language. How's that for duplicity?


The networks may think they have all the sophistication and “artistic” idealism on their side, but they certainly do not have the public. It was only a year ago that Congress overwhelmingly passed a law to increase broadcast indecency fines. The House passed that bill by a margin of ten to one and the Senate passed it unanimously.


Clearly, they do not agree that the FCC is “arbitrary and capricious” in trying to do something to stop the increasingly bad language fouling the public airwaves. What the networks had was a couple of judges in New York who have flouted the will of the American people.

L. Brent Bozell III is President of the Media Research Center, the parent organization of the Culture and Media Institute.