Appeals Court Strikes Down FCC Indecency Rule

WASHINGTON, D.C.: The U.S. Court of Appeals for the Second Circuit has struck down the Federal Communications Commission’s policy on indecency, calling it a violation of the First Amendment.

In the ruling, the court said that the FCC’s indecency rules are “unconstitutionally vague, creating a chilling effect that goes far beyond the fleeting expletives at issue here.”

The FCC had ruled, in 2004, that “a single, nonliteral use of an expletive” could be classed as indecent—and subject to a $325,000 fine per station. “The fine for a single expletive uttered during a broadcast could easily run into the tens of millions of dollars,” the appeals court notes.

The broadcast networks and affiliate stations, faced with the possibility of huge fines, took legal action against the FCC’s policy, holding that the indecency test is “impermissibly vague.” The appeals court notes: “If the FCC cannot anticipate what will be considered indecent under its policy, then it can hardly expect broadcasters to do so.”

The court goes on to say: “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.”