Two days ago, the Second Circuit on remand from the Supreme Court, struck down the FCC’s policy on “fleeting expletives” (don’t you love how bureaucrats can make anything sound clinical and boring?) as being unconstitutionally vague. Incomprehensible is also a good word to use here. Here’s a choice paragraph. Don’t worry kids, since you’re on a 7-second time lapse, you’ll only see **** where the expletives are:
We agree with the Networks that the indecency policy is impermissibly vague. The first problem arises in the FCC’s determination as to which words or expressions are patently offensive. For instance, while the FCC concluded that “bullshit” in a “NYPD Blue” episode was patently offensive, it concluded that “dick” and “dickhead” were not. . . . The Commission argues that its three-factor “patently offensive” test gives broadcasters fair notice of what it will find indecent. However, in each of these cases, the Commission’s reasoning consisted of repetition of one or more of the factors without any discussion of how it applied them.
From the WSJ:
The decision doesn’t mean broadcast TV and radio shows will now be littered with profanity, because advertisers and viewers would likely complain. But the ruling will likely end, for now, the commission’s campaign to cleanse the airwaves of even spontaneous vulgarisms with the threat of hefty fines.
Interestingly, the indecent policy doesn’t apply from 10p.m. to 6a.m. and only covers the networks anyway, but when’s the last time you heard someone say fuck on cable television even at midnight?
For some dense it-could-only-come-from-a-law-prof legal analysis of the decision and its implications, click here. For the second grade reading level analysis, read this. As you can tell, I’m all for this decision right now, but if I’m ever subjected to Janet Jackson’s nipple again, I might sing a different tune. I still wake up with a cold sweat in the middle of the night and see tassels floating before my eyes.
The most interesting article produced as a result of the FCC ruling is this one from Reason, asking the important question: “if indecency is unconstitutionally vague, why isn’t obscenity”? Everyone who’s been within 1500 feet of a law school knows the old “you’ll know obscenity when you see it” line. Sort of like how my contracts professor explained consideration to us: “It’s like chicken sexing. You’ll know it when you see it.”
What I find obscene may not be obscene to you, or, more likely, what you find obscene will not be obscene to me. Take this, for instance. It’s both obscene and indecent. Yet there are no fines.
So, ponders Sullum:
What both definitions have in common is an inescapable vagueness and subjectivity that make enforcement actions utterly unpredictable. Both require the application of “contemporary community standards,” whatever those are, and a judgment about what is “patently offensive.” In practice, this means broadcasters are at the mercy of bureaucrats’ capricious tastes, while the freedom of a defendant in an obscenity case hinges on exactly how icky a bunch of randomly selected people think his films are. The results cannot possibly be anything but arbitrary. As anti-porn activist Patrick Trueman concedes in Reason.tv’s video “Obscenity vs. Freedom of Speech,” the films that triggered Stagliano’s indictment are “in many respects typical of what’s available today”—i.e., they are not different in kind from pornography that is widely available in the District of Columbia (where Stagliano is being tried) and throughout the country. Yet as Richard Abowitz reported the other day, the judge overseeing the trial has barred Stagliano from presenting testimony to that effect.
[This Stagliano trial is highly amusing for several reasons. One is that the prosecution couldn't get the damn video to play; the same video it says is obscene. Today, the judge precluded the State from entering that video into evidence.]
Will the Supreme Court agree to review the Second Circuit’s decision? Will they hold that the FCC’s policy is indeed unconstitutional? Will people start saying “fuck” on national TV during primetime? Stay tuned.
But you didn’t come here and read this post for First Amendment analysis. You came for the video. And let’s be real, this entire post is a big fat excuse for two things: 1. For me to say fuck as many times as I can. Fuck.
Did I say fuck yet? Fuck.