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

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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.