A 2-1 Second Circuit today held the Federal Communications Commission violated the Administrative Procedure Act by changing its policy on profanity on television broadcasts. The court noted that, before 2003, the FCC hadn’t classified the use of "fleeting expletives" as "profane" under 18 U.S.C. 1464. Fox Television Stations, Inc. v. Federal Comm. Comm’n, Nos. 07-1760-ag, 06-2750-ag & 06-5358-ag (2d Cir. June 4, 2007).
The precipitating event involved the live broadcast of the Golden Globes Awards on January 19, 2003. In accepting his Globe, musician Bono said "this is really, really, fucking brilliant. Really, really great." Reversing the decision of its Enforcement Bureau, the Commissioners concluded that "any use of any variant of ‘the F-Word’ inherently has sexual connotation and therefore falls within the scope of the indecency definition."
In months that followed, the FCC applied its new policy to Cher for saying "People have been telling me I’m on the way out every year, right? So fuck ’em."; to Nicole Richie for saying "Have you ever tried to get cow shit out of a Prada purse? It’s not so fucking simple.""; to characters in NYPD Blue for saying "bullshit," "dick", and "dickhead"; and to a Survivor: Vanuatu contestant for calling another contestant a "bullshitter".
The majority held that the FCC hadn’t adequately explained why it changed its policy from allowing the occasional expletive to punishing any. The court pointed out that at oral argument lawyers used "the F-Word" many times. But the opinion always put the "profane" words in quotation marks.
Unlike Blawgletter. F&@k, yeah.
Barry Barnett
