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In Fox v. FCC , the U.S. Court of Appeals for the Second Circuit vacated a Federal Communications Commission (FCC) order which imposed a penalty on the FOX network for violating the agency's indecency and profanity regulations.

While the FCC is statutorily authorized to impose penalties on those who utter "obscene, indecent, or profane language" during a broadcast, it is prohibited from "engaging in censorship."*

The FCC first exercised this power back in 1975 when it found comedian George Carlin's "Filthy Words" monologue indecent. The FCC stated that the ruling was limited to the facts of the Carlin monologue, which featured a series of expletives. By contrast, the broadcast of isolated or occasional profanities -- what the agency called "fleeting expletives" -- would not have required FCC action.

In 2004, the FCC reversed course on "fleeting expletives" after receiving complaints about NBC's broadcast of the 2003 Golden Globe Awards, during which Bono said in his acceptance speech, "this is really, really, fucking brilliant. Really, really great." While the FCC found the broadcast indecent, it did not impose a penalty because NBC was unaware of the change in policy when the event had been aired. But the decision served to warn networks that in the future, the FCC would punish the transmission of a "fleeting expletive."

This lawsuit arose from penalties imposed in response to a number of broadcasts, including:

  1. The 2002 Billboard Music Awards, in which Cher said, "People have been telling me I'm on the way out every year, right?  So fuck 'em."
  2. The 2003 Billboard Music Awards, in which Nicole Richie said, "Have you ever tried to get cow shit out of a Prada purse?  It's not so fucking simple."
  3. NYPD Blue, which used the words "bullshit," "dick," and "dickhead."  (The complaint was dismissed against NYPD Blue because the show was broadcast after 10:00 p.m.)
  4. The Early Show, in which a reality-TV contestant called another participant a "bullshitter."  (The case against the Early Show was dropped on the grounds that the interview was "news" and thus protected by the First Amendment.)

In the orders imposing penalties, the agency announced that the use of "fuck" or "shit" was presumptively indecent because the words have an inherently sexual or excretory connotation, which the FCC deemed violative of law.

Fox and other broadcasters filed a petition for review with the Second Circuit Court of Appeals seeking to overturn the agency's orders. The Second Circuit concluded that the FCC's change of policy was "arbitrary and capricious," because it had not been adequately reasoned or explained, and invalidated the orders.

Reviewing courts will overturn administrative determinations if the agency's actions are "arbitrary and capricious." While an administrative agency can modify its policy, it must acknowledge they are doing so and adequately explain why. This standard prevents an agency from constantly changing its interpretation of the law or from maintaining rules it can apply as it chooses, while affording the agency flexibility to modify its standards as it may see fit.

The FCC's main defense of the new policy was predicated on a "first-blow" theory. Expletives on television enter the home uninvited and without warning, often while children are viewing the program. According to the FCC, to advise viewers to change channels or to turn off their television sets was comparable to arguing that the "remedy for assault is to run away after the first blow."

The Second Circuit found that explanation unavailing. First, the court concluded that the FCC did not explain why the "first-blow" theory had not lead the agency to regulate "fleeting expletives" in the past. Second, the court found the FCC's exceptions for news programming and programs that required the use of expletives for artistic reasons -- like the movie Saving Private Ryan -- as undermining the reasoning behind the theory. (Why can people safely absorb a "first-blow" from the news but not from the Billboard Music Awards?)

The FCC also defended its policy on grounds that if "fleeting expletives" went unchecked, networks would approve the steady and consistent use of swearwords. The Second Circuit rejected that argument since broadcasters have not previously embraced that course of conduct, and the court could see no reason why they would do so now.

The Second Circuit also rejected the analysis that "fuck" and "shit" are presumptively indecent. While the FCC argued that the words' use encompasses a "literal description of sexual or excretory functions," the Second Circuit countered with examples of those profanities being used non-literally. 

By way of example, during the course of a G-8 summit, President George Bush was overheard advising Tony Blair that the UN needed to "get Syria to get Hezbollah to stop doing this shit," while Vice President Dick Cheney counseled Senator Patrick Leahy after a contentious vote on the Senate floor to "fuck [him]self." The majority appreciated the fact that Bush was not referring to excrement and that Cheney was not referring to a sexual act, and so found the FCC's "literalness presumption" to be literally irrational.

After overturning the penalties on statutory grounds, the Second Circuit observed that if the question had been properly before the panel, it was also likely that the FCC's new policy would not pass constitutional muster.

Will the FCC appeal?

Will the U.S. Supreme Court side with the FCC?

Will the FCC forego regulating fleeting expletives?

Who the fuck knows!

(And does anyone really give a shit?)

For a copy of the Second Circuit's decision, please use this link: Fox v. FCC

* See 18 U.S.C. § 1464 and 47 U.S.C. § 326.