Friday, July 30, 2010

Facebook in Lebanon: From Poked to Pokey

Lebanon is one of the most religiously diverse...Image via Wikipedia
The Los Angeles Times reports that the recent arrests of four persons in Lebanon has drawn the attention of the U.S.-based group Human Rights Watch (HRW).

According to the report, the individuals were accused of libel, defamation and insulting the president based on missives that appeared on the Facebook social networking site. An existing law requires Lebanon's general prosecutor to pursue all claims of defamation against the president or any "sister state" of Lebanon, irrespective of whether a specific plaintiff is involved.

In a press release, HRW expressed concern that the recent arrests could signal a clamping down on freedom of expression in Lebanon.

Enhanced by Zemanta

Fighting for Democracy?

Tolo TV stafferImage via Wikipedia
Reporters Without Borders reports that the Afghanistan Cabinet July 27 shut down the television station Emroz and banned two other programs, Del & Nadel and Bazi Bakhat, for purportedly espousing "anti-Islamist," views, a popular, if vague, rationale for government censorship of the news media in Afghanistan.

Emroz, which has been on-air since 2006, frequently adopts anti-Shiite and anti-Iranian positions. Del & Nadel, which is broadcast by the privately owned Yak TV station, and Bazi Bakhat, a product of the privately owned Tolo TV, were also deemed anti-Islamist by the Cabinet, a move condemned by the Union of Afghan Journalists as a dangerous affront to freedom of expression.

The Afghan government has not adopted the American tenet of an unfettered press, but they seem to have taken to waste and corruption without much trouble, so there may still be hope.

Enhanced by Zemanta

Thursday, July 29, 2010

The Talk Is Cheap?

Julie Chen and Les Moonves at the Vanity Fair ...Image via Wikipedia
The news no one has been waiting for has been released: CBS's daytime gabfest debuting this fall now has a title: The Talk.

The program will address issues of interest to women and mothers, including those that affect their personal lives. The show will be hosted by Big Brother host Julie Chen, whose star at the Black Rock network continues to shine, for no reason in any way linked to the fact that her husband, Les Moonves, is CEO of CBS, apparently.

The Talk? The View? More like The Nauseous.

Enhanced by Zemanta

UPDATE: Towns Can't Be Party in First Amendment Open Meetings Law Challenge

The Reeves County Courthouse located at 31.424...Image via Wikipedia
U.S. District Court for the Western District of Texas Judge Robert Junell ruled this week that four municipalities cannot be party to a lawsuit brought by elected officials challenging the Texas Open Meeting Law [Tex. Govt. Code Sec. 551.001(3)] on First Amendment grounds. (See "TUOL" posts 2/4/10,  12/15/09.)

The court held the issue underlying the lawsuit involves individual rights, so the towns of Alpine, Rockport, Wichita Falls and Pflugerville cannot be parties to the suit against Texas Atty. Gen. Greg Abbott. The Open Meeting Act bars a quorum of elected officials from discussing public issues in public or private and subjects violators to fines and possible jail time, except for seven instances in which the officials may meet in executive session  Fifteen elected officials claim the Act infringes on their First Amendment rights.

Enhanced by Zemanta

Wednesday, July 28, 2010

Daily News Journo Needn't Turn Over Recorded Interview to Litigant

Seal of the United States Court of Appeals for...Image via Wikipedia
In Daily News, L.P. & George Rush v. Jane Doe (Docket No. 10-2438), the U.S. Circuit Court of Appeals for the Second Circuit this week reversed a trial court ruling and granted the newspaper's application to quash a subpoena ordering it to turn over a gossip columnist's recorded interview to a litigant.

The appellate court cited reporter's privilege and noted that the victim in the underlying case had already reached an out-of-court settlement.  Daily News gossip columnist George Rush's 22-minute recorded conversation with convicted sex offender Jeffrey Epstein had been sought by attorneys representing an unidentified victim of Epstein.

The 2d Circuit opinion admonished the trial court for not performing its "gatekeeping function before compelling disclosure of privileged newsgathering materials."

Enhanced by Zemanta

UPDATE: Libel Tourism Bill Awaits President Obama's Signature

Libel toe ringImage via Wikipedia
By voice vote yesterday, the House of Representatives passed H.R. 2765, the so-called "libel tourism" bill that would protect U.S. journalists and authors against foreign libel judgments that are inconsistent with First Amendment rights [see "TUOL" post 7/20/10].

The Senate previously passed S. 3518, co-sponsored by Sens. Pat Lahey (D-Vt.) & Jeff Sessions (R.-Ala.), which was sent to the House for reconciliaton before heading to the White House for President Obama's signature. The House bill was sponsored by Texas Democrat Steve Cohen.

Enhanced by Zemanta

Tuesday, July 27, 2010

Tweets Not Paved With Gold

Free twitter badgeImage via Wikipedia
According to reports on and, a study by the Calif.-based Annenberg School for Communication & Journalism of nearly 200 issues involving the Web's impact on Americans revealed that although 49 percent of the study's 1,981 respondents said they used Twitter and other social networking sites, 0 percent of those respondents said they would be willing to pay to use them.

Zero percent. If the same-sized sample were polled about their willingness to grab a beer with Sen. Harry Reid, kiss Rush Limbaugh on a bet or if they have actual proof that President Obama is the spawn of Satan, the results would be higher than 0 percent. Fortunately, Twitter, the San Francisco-based microblogger, has not yet announced any plans to charge for its service.

Still, the director of Annenberg's Center for the Digital Future, which conducted the study, said the zero percent reflects the problems faced by entities that ask Internet users to pay for something the users are accustomed to receiving for free. Take note, paywall-promoting online newspaper sites.

Enhanced by Zemanta

Monday, July 26, 2010

Granite State Gov. Defends Right to Know Law

John Lynch at a rally for Barack Obama in June...Image via Wikipedia
New Hampshire Gov. John Lynch has derailed a bill that would have taken the teeth out of the Granite State's Right-to-Know Law [RSA 91-A].

Associated Press reports that Lynch, a Democrat, vetoed HB 53, which he claimed would have re-defined public body to exempt school superintendents, town administrators and other executives and staffers from the provisions of the statute's open-meeting requirement. Public access to government records also would have been restricted by the measure, according to Lynch.

Lynch said any changes to the right-to-know law must be narrow and free from ambiguity.

Enhanced by Zemanta

Will Fergie Be in Oprah's Debt?

Sarah, Duchess of YorkImage via Wikipedia
According to a story in the U.K. Daily Mail, the Oprah Winfrey Network may be offering a talk show on the cable channel to Sarah Ferguson, the 50-year-old Duchess of York, author of the Budgie series of children's books, and debtor extraordinaire.

The Daily Mail account said Winfrey, 56, was impressed by Fergie's mea culpa appearance on  Oprah's talk show last spring when she fessed up to soliciting payment in return for access to her former hubby, Prince Andrew. Press accounts suggest the former Princess may be in hock to the tune of 2 million pounds.

Hard to guess what kind of ratings Fergie might draw. After all, the storybook marriage to charming Prince Andrew happened in 1986. Viewers may be forgiven if they react to news of "Fergie" getting a talk show on the Oprah Network by saying: "She's looking the worse for wear since the Black Eyed Peas broke up."

The Daily Mail will never be confused with The New York Times, so the tireless staff of "TUOL" is not programming its DVR just yet.  If the rumored tv "marriage" does pan out, there will be dancing in the boardroom of Weight Watchers.

Enhanced by Zemanta

President Obama Faces Another Disaster: Will Appear on 'The View'

The View's current panel (2007 present) includ...Image via Wikipedia
It's likely to spark a TiVo frenzy among liberals and Tea-Partiers alike Thursday when President Barack Obama appears on ABC's kaffee klatsch The View. Obama will be the first sitting president to appear on a daytime tv talk show (although "TUOL" believes that if President Richard Nixon didn't appear on Truth or Consequences, he should have).

President Obama appeared on The View in March 2008, when he was a U.S. Senator from Illinois. The gabfest's "Red White & View" episodes have been devoted to political discussion and have corralled a number of public officials, including Vice President Joe Biden, who appeared on the program last April.

President Obama will likely discuss the BP Gulf oil disaster and the economy among other topics, with co-hosts Joy Behar, Whoppi Goldberg, Sherri Shepherd and Elizabeth "Did you bring a birth certificate?" Hasselbeck.  The president may also apply his mediation skills to assist Whoppi and Sherri in apportioning the breakfast pastries.

President Obama is expected to enter onstage to the strains of "Hail to the Chief," which has View producers scrambling to come up with a different song to play when Barbara Walters saunters over to the couch.
Pray that it's not a slow news day.

Enhanced by Zemanta

Friday, July 23, 2010

Dressing Down GQ for Passing on Hastings' McChrystal Story

Twitter 365 Project - Day 9Image by rich115 via Flickr
According to the NY Observer (, Michael Hastings' Rolling Stone profile of Gen. Stanley McChrystal, the former military commander of U.S. forces in Afghanistan, that sparked a political tsunami in Washington, D.C., might have turned up in GQ Magazine, where Hastings is a contributor, but the slick fashion journal took a pass on the author's pitch.

GQ, which apparently was content instead to run a cover story on supermodel Miranda Kerr (let's see Gen. McChrystal  gracefully saunter down a runway), claims it had another reporter trying to line up a chat with the straight-shooting General, so it didn't want to have Hastings duplicate its efforts.

According to the Observer item, Rolling Stone's Website attracted 2.2 million visitors in the first two days that Hastings' profile was posted.  "TUOL" weighed in on theMcChrystal issue for BU Today (

Enhanced by Zemanta

Daniel Schorr (1916-2010)

Daniel SchorrImage via Wikipedia
Daniel Schorr died today at age 93.  An NPR commentator the past two decades, Schorr was brought into the CBS fold by famed correspondent Edward R. Murrow, and prospered at the Eye Network for 23 years. His journalistic achievements, ranging from his coverage of Moscow as a CBS correspondent to his reporting on the U.S. intelligence community, are too numerous to recount here. He always considered his greatest achievement to be earning a hallowed place on President Nixon's "Enemies List."

In this disturbing age of fragmented partisan journalism and around-the-clock coverage of celebrity meltdowns, Schorr's loss is that much more profound. 

Enhanced by Zemanta

Thursday, July 22, 2010

10th Circuit: Student Journo's Illegal Search Suit Against Deputy DA May Proceed

Seal of the United States Court of Appeals for...Image via Wikipedia
In a 30-page decision this week, the U.S. Circuit Court of Appeals for the Tenth Circuit reversed the trial court decision in Thomas Mink v. Susan Knox (Case No. 08-1250), holding that a former Deputy District Attorney's qualified immunity privilege did not protect her from being sued personally regarding an improper search of a student journalist's home.

Grounded on a criminal libel law claim brought against student journalist Thomas Mink's parody of Univ. of Northern Colorado Prof. Junius Peak that appeared in the Howling Pig student newspaper, Greeley, Colo., police obtained a warrant and searched Mink's home. The appellate court ruled the search violated Mink's First Amendment rights, and asserted that authorities should have known it did so.

According to the 10th Circuit decision, Knox did not personally have to participate in the abridging of Mink's civil rights to face exposure to liability, but that an "affirmative link" between the deprivation of Mink's rights and Knox's exercise of control or discretion was sufficient. The ACLU took up the cudgel, representing Mink as a means of challenging the state's criminal libel law.

Enhanced by Zemanta

Brangelina Settle Privacy Claim Against Murdoch London Tabloid

Angelina Jolie Salt - 00047Image by Daniel Semper via Flickr
On the day that her action flick Salt debuts, 35-year-old actress Angelina Jolie and her hunky companion Brad Pitt, 46, settled their prviacy suit against News Corp.-owned  London tabloid News of the World, pouring salt in Rupert Murdoch's wound.

The undisclosed settlement amount and court costs, which the Hollywood couple will donate to their charitable foundation, resolves a suit filed in the London High Court after the tabloid published two articles in January 2010, one of which appeared on the front page, alleging attorneys for Brangelina, who aren't married, were assisting the purportedly separating actors in deciding how to divide their $313 million marital assets and work out custody of  six children, three of whom they adopted together.

The suit, which was prompted by the tabloid's failure to apologize to Jolie & Pitt and retract the story, ended with the newspaper conceding the stories were false and agreeing to pay damages.  Under English libel law, unlike its U.S. counterpart, the media defendant carries the burden of proving the truth of what it published and the plaintiff need not prove it was damaged by the allegedly false statements.

The crack staff of "TUOL" admits the case is not precedent-setting, but couldn't otherwise justify running the above photo.

Enhanced by Zemanta

Wednesday, July 21, 2010

Poor Sports: Globe-Democrat Scribes Walk Out Over Nonpayment

ST. LOUIS, MO - APRIL 30: Edwin Encarnacion #2...Image by Getty Images via @daylife
The St. Louis Cardinals are locked in a tight division battle with the Cincinnati Reds for first place in the National League Central Division, but don't expect to read about it in the sports section of the St. Louis Globe-Democrat.

Sports Editor Rob Rains and his entire staff took a powder from the online-only publication after not being paid for their efforts since May.  Although the website remains active, the sports staff has bolted to "pursue other opportunities,"  ones that pay, no doubt.

Enhanced by Zemanta

Tuesday, July 20, 2010

NY Times: Mayor Bloomberg Hosts Own 'Celebrity Apprentice'

New York City HallImage via Wikipedia
More than 450 applicants vied this year for the prestigious 152 internships available in New York Mayor Michael R. Bloomberg's City Hall.  Thanks to The New York Times, readers know the selection processwas above-board, with the scion of any captain of industry, media mogul, high-ranking politician or celebrity having as good a chance to land one of the plum positions as any other child of the connected.

A sluggish three months after The New York Times requested a list of the interns under New York's Freedom of Information Law [Pub. Off. Law Sec. 87 et seq.], which is modeled after the federal Freedom of Information Act [5 U.S.C. sec. 552 et seq.], the Mayor's office produced the list of names, which appears to have been photocopied from the Social Register.

There's 2003 high school intern Alexander Blankfein, son of Goldman Sachs' cuddly chief executive Lloyd C. Blankfein, and Jacob Doctoroff, whose daddy, Daniel L. Doctoroff, is a former deputy mayor and current president of Bloomberg LLP. Jacob was an intern in 2002 as an eighth grader, where he brought a youthful perspective to running the city that never sleeps.

The city's Health & Hospitals Corp. President Alan D. Aviles surely beamed with pride when his daughter Louisa interned in 2007 in the Community Affairs Unit.  Playwright Neil Simon's stepson, and the offspring of CBS Chief Executive Laurence A. Tisch and Blackstone Group co-founder Peter G. Peterson made the list. So too did 2007 intern Luke Russert, son of the late NBC Meet the Press host Tim Russert.

A spokesperson for the Mayor's office, in his best damage-control voice, noted that the progeny of the powerful make up a tiny fraction of the nearly 1,500 internships that have been filled since Mayor Bloomberg took a pay cut to occupy City Hall.  It must be hell for the interns having to decide what to wear at the Gracie Mansion summer bbqs.

Enhanced by Zemanta

UPDATE: Full Senate Endorses Libel Tourism Bill

Official photo of Senator Patrick Leahy (D-VT)Image via Wikipedia
By a unanimous voice vote, the Senate yesterday approved S. 3518, the so-called SPEECH (Securing the Protection of our Enduring Established Constitutional Heritage) bill co-sponsored by Sen. Patrick Leahy (D-Vt.) and Sen. Jeffrey Sessions (R-Ala.) that bars domestic enforcement of foreign libel judgments against U.S. citizens that are inconsistent with First Amendment protections. (See "TUOL" posts 7/14/10, 6/25/10.)

The legislation is headed to the House of Representatives for final action.  The House by voice vote previously passed its own version of the measure, H.R. 2765.

Enhanced by Zemanta

Monday, July 19, 2010

Defamation by Implication a No-Go, Says Wash. Appeals Court

SEATTLE - MARCH 16:  The cover of the last eve...Image by Getty Images via @daylife
In  Warren Yeakey v. Hearst Communications, Inc. et al. (Case No. 39263-1-II), the Washington Court of Appeals this month rejected a plaintiff's claim of defamation by implication, holding that the media defendant did not create a false impression by omitting material facts from its substantially true reporting about the plaintiff's criminal history of drug abuse.

The now-defunct Seattle Post-Intelligencer reported on a tragic accident in November 2006, in which a construction crane operated by Yeakey collapsed, killing a tenant in a nearby apartment building. A series of P-I stories about the incident included the following headlines: "Operator in crane wreck has history of drug abuse" and "Man completed mandated rehab program after his last arrest in 2000," and noted in one story that Yeakey had a criminal record of at least six drug-related convictions.

A state probe concluded that the accident was caused by a structural defect, not an operator error, which the P-I reported.  Exonerated, Yeakey then sued for defamation, false light invasion of privacy, outrageous conduct, and negligent infliction of emotional distress. Though conceding the P-I stories did not contain any false statements about him, the plaintiff alleged defamation by implication, asserting the newspaper's juxtaposition of true statements created the false impression that he was to blame for the tenant's death.

Writing for the court, Judge Lisa Worswick ruled "a plaintiff may not base a defamation claim on the negative implication of true statements."

Enhanced by Zemanta

UPDATE: Stag(liano) Film Not Obscene, Judge Rules

US District Court Judge, Richard D. LeonImage via Wikipedia
It's getting harder and harder to find a good federal obscenity law prosecution in Washington, D.C. nowadays.

No sooner did the crack research team at "TUOL" report on the first such trial in a quarter-century advanced by federal prosecutors against adult film producer John Stagliano (see "TUOL" post 7/14/10) than U.S. District Court Judge Richard Leon tossed the case before Stagliano's defense team opened its briefcases. Judge Leon ruled on Friday that the prosecution's evidence was "woefully insufficient" to persuade a jury that the defendants violated federal obscenity laws, according to accounts in The Washington Post and The National Law Journal.

Judge Leon was critical of the case brought by the U.S. Justice Dept.'s Obscenity Prosecution Task Force, which he said failed to connect the defendants to the production and distribution of Jay Sin's Milk Nymphos and Joey Silvera's Storm Squirters 2, the two allegedly obscene DVDs at the center of the case.

Stagliano joked with reporters that the abbreviated trial was bad for his autobiography.

Enhanced by Zemanta

Friday, July 16, 2010

Brit Investigative Reporters Take a Hit in Times Libel Ruling

The TimesImage via Wikipedia
According to, Metro Police Detective Sgt. Gary Flood's successful outcome this week in his libel action against the Times has negative ramifications generally for investigative reporters toiling in the U.K.

Lord Justice David Neuberger headed the panel of three appeal judges who ruled in the Flood case that newspaper articles are not shielded by the so-called Reynolds privilege. The defense was spawned in 2001 and protects investigative reporters who act responsibly in reporting in good faith on matters of public concern.

Flood sued the Times in June 2006, after an article appeared that accused him of accepting bribes. An initial judicial ruling found the Reynolds qualified privilege applicable to the Times' print version account of the Flood story, but held the privilege was lost on the Times' website version of the story because an official  probe had cleared Flood of the bribery allegations.

Critics of the appeals court decision are fearful that it throws into chaos the long-recognized libel defense of "neutral reportage," which protects journalists neutrally republishing allegedly defamatory remarks if the story is newsworthy and concerns a public controversy, the remarks at issue are made by a responsible individual or group, concern a public official, public figure or organization, and the story containing the allegedly defamatory remarks is accurate and includes denials or other views.

The Times is expected to petition the Supreme Court for permission to appeal the ruling.

Enhanced by Zemanta

Thursday, July 15, 2010

British Invasion: The Sequel

LONDON, ENGLAND - MARCH 02:  A BBC logo adorns...Image by Getty Images via @daylife
Bucking the trend of retrenching by news organizations, is bolstering its Washington, D.C. bureau with 10 journalists devoted to covering U.S. politics, general news, entertainment and sports,  Ad Age reports.

Hewlett-Packard will be an advertising launch partner for, which  boasts an in-house sales force of 25, based in New York, Chicago, San Francisco and Los Angeles.  According to ComScore, attracts 17.4 million U.S. readers.

BBC Worldwide, the parent of and BBC Worldwide America, generated $1.6 billion in revenue last year. As a public trust, the BBC website can't advertise on United Kingdom-based computers, but that restriction does not apply to non-Commonwealth outlets, such as the U.S., a major source of ad revenue.  The Ad Age story quotes a vice president, who claims the subsidiary tripled its ad revenue last year.

Jolly good.

Enhanced by Zemanta

Wednesday, July 14, 2010

Adult Film Mogul: Obscene But Not Heard?

John Stagliano, taken at the AVN Expo, January...Image via Wikipedia
Now playing in the U.S. District Court for the District of Columbia for the first time in more than two decades--an adult porn obscenity trial.

U.S. District Court Judge Richard Leon (a graduate of "TUOL"'s law school) is hearing the government's case against adult film producer John Stagliano.  As reported in The National Law Journal, Stagliano was indicted in federal court in April 2008, on seven counts of distributing obscene, sexually graphic videos through his two companies, Evil Angel Productions and John Stagliano, Inc.

One of many porno producers targeted by the Bush Administration Justice Dept., Stagliano faces up to 32 years in prison if convicted. Two DVDs--Jay Sin's Milk Nymphos and Joey Silvera's Storm Squirters 2 (not to be confused with the opera of the same name), are obscene, according to the government, in that, taken as a whole, they lack serious literary, artistic, political or scientific value, which is the obscenity standard set by the Supreme Court in Miller v. California, 413 U.S. 15 (1973). The videos allegedly include scenes depicting bondage, urination and enema use (though apparently not in a way fans of House and ER would recognize).

Attorneys for Stagliano fault federal obscenity law standards as being too vague to control Internet speech, and hasten to add that the performers in the video were consenting adults engaged in sexual acts not in and of themselves illegal. Judge Leon previously balked at dismissing the indictment, finding that the federal obscenity laws were not unconstitutionally vague as applied to Internet speech.

The trial is not expected to supplant the Washington Monument or the Smithsonian as a favorite tourist attraction among the throngs of D.C.'s summer visitors.

Enhanced by Zemanta

Sun Chronicle Charges Bloggers to Comment on Online Edition Articles

NEW YORK - MAY 20:  In this photo illustration...Image by Getty Images via @daylife
Anonymous bloggers who want to add their two-cents to articles appearing in the online edition of the Attleboro (Mass.) Sun Chronicle must now follow two steps: 1) shed their anonymity & 2) cough up 99 cents to add their two cents.

Editor & Publisher reports that the Sun Chronicle, like its neighboring newspapers, The Foxboro Reporter and the Taunton Silver City Bulletin, now requires would-be commenters  to register their name, address and phone number with the paper, along with a valid credit card number, and to pay 99 cents for the chance to comment on online news stories.

The Sun Chronicle is not looking to generate revenue to overcome shrinking advertising and lost circulation, as the daily's publisher concedes much of the 99 cent fee will be absorbed by the cost of verifying credit card numbers.  Rather, the paper hopes to elevate the level of public discourse concerning the news of the day and to deter obnoxious visitors to its website who spew vulgar and inflammatory remarks while hiding behind a pseudonym.  Newspapers around the nation are grappling with this issue, as reflected by The Buffalo News, which now requires its article posters to complete a registration form including their name, address, email and phone number (see "TUOL" post 6/21/10).

"TUOL" believes the same strict adherence to publication guidelines followed by the paper in publishing or rejecting "snail mail" letters to the editor can be applied to online comments without compromising the First Amendment free speech right recognized by the Supreme Court to protect one's identity while commenting on issues of public concern.  Charging readers to post comments will discourage citizen participation and public dialogue. Moreover, the Sun Chronicle may regret its policy if security is compromised and a hacker gains access to the credit card numbers of the posters.

Stop whining and be thankful you have readers energized enough to weigh in on local and national news issues.

Enhanced by Zemanta

UPDATE: Senate Curtails Libel Tourism Trade

WASHINGTON - FEBRUARY 3:   U.S. Senate Judicia...Image by Getty Images via @daylife
The U.S. Senate Judiciary Committee this week unanimously passed the SPEECH (Securing the Protection of our Enduring Established Constitutional Heritage) bill co-sponsored by Sen. Patrick Leahy (D-Vt.) and Sen Jeffrey Sessions (R-Ala.), which will make it more difficult for foreign plaintiffs to prevail against U.S. journalists and authors in defamation claims brought outside our country. (See "TUOL" post 6/25/10.)

The legislation, which is expected to gain full Senate approval, would prevent enforcement of foreign libel judgments in the U.S. that are not consistent with First Amendment protections. The SPEECH bill has the backing of the Reporters Committee for Freedom of the Press and the American Association of Publishers, among other groups.

Enhanced by Zemanta

Tuesday, July 13, 2010

2d Circ. for 2nd Time Rejects FCC Indecency Standard

NYPD BlueImage via Wikipedia
The U.S. Court of Appeals for the Second Circuit ruled this week in Fox Television Stations, Inc. et al. v. Federal Communications Commission (Docket Nos. 06-1760, 06-2750, 06-5358) that the FCC's Indecency Policy toward television airwaves is an unconstitutional violation of the First Amendment.

In 2007, a three-judge panel of the 2d Circuit found the FCC's indecency policy "arbitrary and capricious" under the Administrative Procedure Act( ("APA") [5 U.S.C. sec. 706(2)(A)]. The U.S. Supreme Court reversed the ruling  in Fox Television Stations, Inc. v. FCC, 129 S.Ct. 1800 (2009), upholding the validity of  the APA and ordering the 2d Circuit to consider the plaintiffs' constitutional arguments on remand.

The appellate court concluded the FCC's policy: "violates the First Amendment because it is unconstitutionally vague, creating a chilling effect that goes far beyond the fleeting expletives at issue here." The 2d Circuit, noting in its 32-page decision that the Supreme Court protects indecent speech (Reno v. ACLU, 521 U.S. 844 (1997)), said the FCC's current policy fails constitutional scrutiny, but left open the possibility that the agency conceivably could enact indecency rules that might pass constitutional muster.

The 2d Circuit offered an example of the vagueness of the FCC indecency rules, pointing out that the FCC found the use of the word bullshit in an episode of the now-defunct  cop show NYPD Blue patently offensive, but had no problem with the use of the words dick and dickhead in the same episode. Under its 2001 Industry Guidance, the FCC said finding content indecent required determining: 1) a description or depiction of sexual or excretory organs or activities and 2) the broadcast was patently offensive as measured by contemporary community standards for the broadcast medium.

The appellate court granted the plaintiffs' petition for review.

Enhanced by Zemanta