Second Circuit: Indecency Regulations Unconstitutionally Chill Protected Speech

Previously, the Second Circuit and Supreme Court disagreed on whether the FCC Indecency regulations were arbitrary and capricious (the Second Circuit finding that they were adopted arbitrarily and capriciously and the Supreme Court overturning and ruling that the Commission ruled on a rational basis to extend indecency enforcement.) In its first pass at this case, the Second Circuit avoided ruling on whether the FCC indecency regulations violated the First Amendment because the Commission failed to satisfy the APA’s prohibition on arbitrary and capricious regulations.
Today’s ruling goes to the core matter: whether the FCC’s indecency regulations are compatible with the First Amendment. In Fox Television Stations v. Federal Communications Comm., the Second Circuit Court of Appeals ruled that the FCC indecency regulations violate the First Amendment because they are unconstitutionally vague, creating a “chilling effect that goes far beyond the fleeting expletives at issue here.”
Although the Supreme Court found broadcast indecency regulation Constitutionally permissible, this court notes the vast change in the media landscape and technological empowerment that makes broadcast less particularly pervasive than it was in 1978. “The past thirty years has seen an explosion of media sources, and broadcast television has become only one voice in the chorus. Cable television is almost as pervasive as broadcast – almost 87 percent of households subscribe to a cable or satellite service – and most viewers can alternate between broadcast and non-broadcast channels with a click of their remote control.”
Where individuals have the option to block content or channels, as on cable television, the First Amendment does not support bans on indecency that are as large. In US v. Playboy, the Supreme Court found that a technology that could block access to channels on a house-by-house basis made a content-based speech restriction unconstitutional.
The court notes that most modern televisions and DTV converter boxes that allow older TV sets to pick up today’s broadcast television signals are equipped with the V-chip, that allows individual television owners to block potentially offensive content from entering their homes. (Previously: Are Indecency Regulations Obsolete?

There is considerable disagreement among the parties, however, as to what framework Pacifica established. The FCC interprets Pacifica as permitting it to exercise broad regulatory authority to sanction indecent speech. In its view, the Carlin monologue was only the most extreme example of a large category of indecent speech that the FCC can constitutionally prohibit. The Networks, on the other hand, view Pacifica as establishing the limit of the FCC’s authority. In other words, they believe that only when indecent speech rises to the level of “verbal shock treatment,” exemplified by the Carlin monologue, can the FCC impose a civil forfeiture. Because Pacifica was an intentionally narrow opinion, it does not provide us with a clear answer to this question. Fortunately, we do not need to wade into the brambles in an attempt to answer it ourselves. For we conclude that, regardless of where the outer limit of the FCC’s authority lies, the FCC’s indecency policy is unconstitutional because it is impermissibly vague.

Vague rules for what constitutes impermissible indecency has a chilling effect on speech. To the extent that restrictions on speech are Constitutional, they must be specific and clear to avoid having a chilling effect on speakers. The prohibition on vague regulations (the vagueness doctrine) serves several important objectives in the First Amendment context:

  • First, the doctrine is based on the principle of fair notice.
  • Second, the vagueness doctrine is based ‘on the need to eliminate the impermissible risk of discriminatory enforcement.’ Specificity, on the other hand, guards against subjectivity and discriminatory enforcement.
  • Although the Commission sought to give broadcasters guidance in its 2001 document, Industry Guidance on the Commission’s Case Law Interpreting 18 U.S.C. § 1464, the court finds that the Commission’s policy is overly vague, especially after the changes to the fleeting expletive rule.

    “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. Thus, the word “bullshit” is indecent because it is “vulgar, graphic and explicit” while the words “dickhead” was not indecent because it was “not sufficiently vulgar, explicit, or graphic.” This hardly gives broadcasters notice of how the Commission will apply the factors in the future.
    “The English language is rife with creative ways of depicting sexual or excretory organs or activities, and even if the FCC were able to provide a complete list of all such expressions, new offensive and indecent words are invented every day.
    “The FCC’s current indecency policy undoubtedly gives the FCC more flexibility, but this flexibility comes at a price. The “artistic necessity” and “bona fide news” exceptions allow the FCC to decide, in each case, whether the First Amendment is implicated. The policy may maximize the amount of speech that the FCC can prohibit, but it results in a standard that even the FCC cannot articulate or apply consistently.”

    Because indecency seems to be a case-by-case judgment (where the Commission knows it when it sees it), the court worries that the FCC could apply discriminatory enforcement to chill speech from particular speakers or particular types of speech.

    “We have no reason to suspect that the FCC is using its indecency policy as a means of suppressing particular points of view. But even the risk of such subjective, content-based decision-making raises grave concerns under the First Amendment. Take, for example, the disparate treatment of “Saving Private Ryan” and the documentary, “The Blues.” The FCC decided that the words “fuck” and “shit” were integral to the “realism and immediacy of the film experience for viewers” in “Saving Private Ryan,” but not in“The Blues.” Fox, 489 F.3d at 463. We query how fleeting expletives could be more essential to the “realism” of a fictional movie than to the “realism” of interviews with real people about real life events, and it is hard not to speculate that the FCC was simply more comfortable with the themes in “Saving Private Ryan,” a mainstream movie with a familiar cultural milieu, than it was with “The Blues,” which largely profiled an outsider genre of musical experience.”

    This has a chilling effect on speech.

    “Under the current policy, broadcasters must choose between not airing or censoring controversial programs and risking massive fines or possibly even loss of their licenses, and it is not surprising which option they choose. Indeed, there is ample evidence in the record that the FCC’s indecency policy has chilled protected speech.
    “During the previous proceedings before this Court, amicus curiae gave the example of a local station in Vermont that refused to air a political debate because one of the local politicians involved had previously used expletives on air. The record contains other examples of local stations that have forgone live programming in order to avoid fines. For instance, Phoenix TV stations dropped live coverage of a memorial service for Pat Tillman, the former football star killed in Afghanistan, because of language used by Tilliman’s family members to express their grief. A station in Moosic, Pennsylvania submitted an affidavit stating that in the wake of the FCC’s new policy, it had decided to no longer provide live, direct- to-air coverage of news events “unless they affect matters of public safety or convenience.” If the FCC’s policy is allowed to remain in place, there will undoubtedly be countless other situations where broadcasters will exercise their editorial judgment and decline to pursue contentious people or subjects, or will eschew live programming altogether, in order to avoid the FCC’s fines. This chill reaches speech at the heart of the First Amendment.
    “As these examples illustrate, the absence of reliable guidance in the FCC’s standards chills a vast amount of protected speech dealing with some of the most important and universal themes in art and literature. Sex and the magnetic power of sexual attraction are surely among the most predominant themes in the study of humanity since the Trojan War. The digestive system and excretion are also important areas of human attention. By prohibiting all “patently offensive” references to sex, sexual organs, and excretion without giving adequate guidance as to what “patently offensive” means, the FCC effectively chills speech, because broadcasters have no way of knowing what the FCC will find offensive. To place any discussion of these vast topics at the broadcaster’s peril has the effect of promoting wide self-censorship of valuable material which should be completely protected under the First Amendment.”

    And while solidly striking the current indecency regulations as unconstitutional, the court leaves the possibility that the Commission could come up with indecency enforcement regulations that would be constitutional (after all, the Second Circuit can’t overturn Pacifica.)