Silencing Profanity Wastes Government Time

By Erwin Chemerinsky

      Freedom of speech and common sense won an important battle in the 2nd U.S. Circuit Court of Appeals' recent decision that broadcasters cannot be punished for "fleeting expletives."
      In Fox Television Stations Inc. v. Federal Communications Commission, 06-1760 (2nd Cir. June 4, 2007), the court invalidated a new Federal Communications Commission policy prohibiting any use of certain words on television and radio. The court concluded that the policy is arbitrary and capricious under the Administrative Procedures Act and that it raises serious First Amendment concerns.
      The Supreme Court should affirm the Second Circuit and make clear that there is no need to ban words from use on television and radio.The goal of the regulation is to protect children. But even young children have almost surely heard the words before and it is incomprehensible as to what psychic harm is caused by hearing occasional profanities.
      The Second Circuit case involved four instances of Fox, ABC, and CBS broadcasting profane and indecent material. In a 2002 Billboard Music Awards program on Fox, Cher, while accepting an award, said "People have been telling me I'm on the way out every year, right? So fuck `em." During the next year's awards, Nicole Ritchie, while presenting an award, queried: "Have you
      ever tried to get cow shit out of a Prada purse? It's not so fucking
      simple." In several episodes of ABC'S NYPD Blue, Detective Andy Sipowicz and other characters used expletives such as "bullshit", "dick" and "dickhead". Finally, a recent edition of CBS's The Early Show saw a contestant from the reality show Survivor: Vanuato refer to a fellow contestant as a "bullshitter."
      Federal law provides that "[w]hoever utters any obscene, indecent, or profane language by means of radio communication shall be fined under this title or imprisoned not more than two years, or both." 18 U.S.C. *1464. Additionally, the FCC may impose penalties for violations of this section. 47 U.S.C. *503(b)(1)(D). But federal law is also clear that the FCC may not engage in censorship. 47 U.S.C. *326.
      In FCC v. Pacifica Foundation, 438 U.S. 726 (1978), the Supreme Court upheld the ability of the FCC to sanction a radio station for broadcasting George Carlin's monologue on the "seven dirty words." The Court stressed that broadcast media is uniquely intrusive into the home, in addtion to being accessible to children. The Court, though, "emphasize[d] the narrowness of [its] holding" and clearly did not hold that the FCC could punish all profanities or sexual content on television and radio. In fact, there actually was no majority opinion in the case and Justices Powell and Blackmun, who concurred in the judgment and supplied two of the votes necessary for the 5-4 majority, also emphasized that the Court's holding was a narrow one, limited to the facts of the Carlin monologue as broadcast.
      Following this decision, the FCC did not attempt to use its authority to punish speech again until 1987. That effort to punish Infinity Broadcasting for its use of profanities on air led to a lawsuit and ultimately a settlement.
      The FCC said that its determination of whether material was indecent would turn on two considerations: (1) whether the material describes or depicts sexual or excretory organs or activities; and (2) whether the broadcast is "patently offensive" as measured by contemporary community standards.
      Under the policy, the FCC was clear that use of a profanity in a nonsexual way would not be punished. That changed, though, in 2004. During NBC's live broadcast of the Golden Globe Awards, U2 frontman Bono accepted an award by saying, "This is really, really fucking brilliant - really great."
      The FCC said that any use of the "F-word" has inherently sexual connotations and therefore is indecent. The commission concluded "that the 'F-word' is one of the most vulgar, graphic and explicit descriptions of sexual activity in the English language, and therefore use of that word is patently offensive under contemporary community standards." Complaints Against Various Broadcast Licensees Regarding Their Airing of the Golden Globe Awards Program, 19 F.C .C.R. 4975 (2004).
      That led to the FCC's enforcement actions against Fox, CBS and ABC, the basis for the 2nd Circuit decision. The 2nd Circuit concluded that the change of policy was invalid under the Administrative Procedures Act because it was "arbitrary, capricious and an abuse of discretion." The court explained that "the commission provides no reasonable explanation for why it has changed its perception that a fleeting expletive was not harmful."
      The word was not used in a sexual content in any of the examples handled by the 2nd Circuit. The court obviously was unpersuaded by the FCC's claim that the word has universally sexual connotations. Cher's statement about her critics, "So fuck 'em," surely was not about sexual activity. Nor was the court persuaded by the government's claim that any exposure of children to the word is harmful.
      The court explained: "The FCC's decision, however, is devoid of any evidence that suggests a fleeting expletive is harmful, let alone establishes that this harm is serious enough to warrant government regulation. Such evidence would seem to be particularly relevant today when children likely hear this language far more often from other sources than they did in the 1970s, when the commission first began sanctioning indecent speech."
      The 2nd Circuit's decision is an important victory for speech and should be affirmed by the U.S. Supreme Court. After Janet Jackson's breast was exposed briefly during the Super Bowl XXXVIII halftime show, Congress amended the federal law prohibiting indecency to provide for a fine of $325,000 for each violation. The result is that many broadcasters have been chilled from anything that could lead to liability, including many stations that have gone so far as to refuse to air the 1998 feature film "Saving Private Ryan" because of the presence of profanities.
      The Supreme Court should use this case as the occasion for reconsidering and overruling FCC v. Pacifica. As the 2nd Circuit noted, technology has undermined the rationale of that decision. The Supreme Court has treated cable television differently from free television and radio and allowed much less government regulation of its content. Denver Area Educational Telecommunications Consortium Inc.v. FCC, 518 U.S. 727 (1996).
      As the 2nd Circuit noted, though, 86 percent of American households subscribe to cable or satellite services, rendering distinctions among varieties of media obsolete.
      More importantly, it is impossible to see how exposure to expletives harms children or requires government regulation. Any parent knows that children hear such words from a young age, sometimes from parents and often from peers. Parents teach their children about appropriate language.
      There is room for reasonable debate over whether it harms children to see violence or sexual situations, but there simply is not a basis for believing that hearing Bono say that something is "fucking brilliant" will cause harm to anyone.
      Nor was anyone harmed when Jackson's breast was exposed for two seconds (it wasn't even completely bare). The FCC's punishment for CBS' broadcast of the incident is pending; hopefully, the 2nd Circuit decision will provide a precedent for overturning those sanctions as well.
      Most importantly, we must remember that to censor words is to censor ideas. As the Supreme Court expressed in Cohen v. California, 403 U.S. 15 (1971): "[W]e cannot indulge the facile assumption that one can forbid particular words without also running a substantial risk of suppressing ideas in the process. Indeed, governments might soon seize upon the censorship of particular words as a convenient guise for banning the expression of unpopular views."
      In Cohen, the court held that a boy could not be punished for having a jacket on his arm in a courtroom with the words "Fuck the draft" on its back. As free-speech expert Franklyn S. Haiman has noted, there was no more-powerful option for communicating the message; "Fornicate the draft" or "Oppose the draft" would not have said the same thing.
      An unfortunate legacy of the Bush administration FCC has been its increased censorship of the media. Although nearly everyone agrees that there are difficult lines to be drawn, former FCC policy was far superior to the current approach.
      There are many social problems to be addressed by the federal government, including some regarding the media, but the government should not waste its time punishing the occasional use of profanity on television or radio.

      Erwin Chemerinsky is the Alston & Bird professor of law and a professor of political science at Duke University.