America, F**k Yeah! Supreme Court Axes FCC’s TV Obscenity Rules

The U.S. Federal Communications Commission and its enforcement of anti-obscenity laws have long been a thorny irritation to colorful media figures like Detroit rapper Eminem who famously sang, “So the F-C-C won’t let me be. Or let me be me so let me see. They tried to shut me down on M-T-V. But it feels so empty without me.”

Today the U.S. Supreme Court released a ruling that significantly scales back the FCC’s censorship authority.  In the case Federal Communications Commission, et al. v. Fox Television Stations, Inc., et al. the highest court in the land refused to assess the constitutionality of U.S. federal law that prohibits broadcasted obscenities. However, it did deal FCC efforts a blow by finding it illegal for the FCC to fine TV broadcaster who air obscenity or nudity during daytime hours.

Extra Notes:
A couple of points of clarification.  The ruling does not scrap wholesale the obscenity laws, merely state that they need to be clearly defined in non-arbitrary language by the FCC.  Thus, it does effectively scrap the laws for now, but may not long term.  That said, it does leave the door open to future review.

The court did not overturn the Appeals court’s ruling that the law was unconstitutional, hence for now the law can indeed be considered unconstitutional and uneforceable from a second front — the Appeals decision, until the Supreme Court agrees to rule on Constitutionality.

Lastly, the ruling applies equally to all television broadcasters, and several other broadcasters like ABC had joined Fox in the lawsuit defense.  In other words, Fox did not get “preferential treatment”.

I. FCC’s Obscenity Censorship is as Old as Broadcast Television Itself

The ban on TV profanity is virtually as old as broadcast television itself.  The first line-based broadcast television tests were carried out in 1933.  Just a year later Congress passed the Communications Act of 1934 that formed the FCC, the agency tasked with governing radio and the emerging TV format.

The Communications Act contained provisions banning obscene content from being broadcast.  

Profanity has been banned from daytime broadcast television since its introduction
[Image Source: unknown]
In the post-World War II era, television became a ubiquitous element of society and the ban on obscenity was inserted into the U.S. Criminal code.  Specifically, Title 18 of the United States Code, Section 1464, prohibits the utterance of “any obscene, indecent or profane language by means of radio communication.”

Violations carried stiff penalties — from the code: “Whoever utters any obscene, indecent, or profane language by means of radio communication shall be fined not more than $10,000 or imprisoned not more than two years, or both.”

The FCC, tasked with enforcement of the law, ruled that between 6 a.m. and 10 p.m. all obscene content was out-of-bounds.  Between 10 p.m. and 6 a.m., there was a so-called “safe harbor” rule that allowed the broadcast of profanity and sexualized content, but certain words like the F-word in certain contexts or explicit depictions of sex remained prohibited even during this special time.

II. Public Support for Rules Wanes

But as society traded their suits and ties for jeans and a t-shirt, public sentiments about the obscenity ban shifted.  Many became critical of the prohibition.  After all, didn’t the First Amendment guarantee:

Congress shall make no law …  abridging the freedom of speech, or of the press
Couldn’t obscenity be considered “free speech”?

And then there was the issue of inconsistent enforcement.  As cable television became popular in the 1980s and 1990s, the FCC relaxed rules on sex and swearing on cable, under the notion that sensitive individuals like minors whom the law was designed to protect wouldn’t have access to the paid content.  Likewise, internet TV and/or radio content in the 1990s and 2000s has been minimally policed by the FCC.

Amid this uncertainty network television began to probe the limits of what qualified as “obscene” with the so-called “fleeting obscenity” — occasional spontaneous outburst of a curse word or two from TV hosts or commentators.

Fox pressed the issue with a pair of Billboard Music Awards broadcasts.  In 2002 Cher addressed her critics by exclaiming during the broadcast “fuck ’em”, and the next year Nicole Richie during her presentation about her TV show The Simple Life remarked, “Why do they even call it The Simple Life? Have you ever tried to get cow shit out of a Prada purse? It’s not so fucking simple.”

The FCC did not react sympathetically to broadcasters testing the limits with spontaneity.  In 2004 it released strict guidelines forbidding fleeting obscenity and sued Fox for the curse words it broadcast.

The case languished in the courts for a half decade before finally coming before the Supreme Court in 2009.  At the time the Supreme Court ruled narrowly in the FCC’s favor (5-4), but it refused to rule on the Constitutionality of the case.

III. Round 2 at the Supreme Court

That led the case to continue to crawl through the federal court system with the Second Circuit Court of Appeals in New York City unanimously finding that the FCC rules violated First Amendment protections to free speech.  In the unanimous ruling Judge Rosemary S. Pooler wrote [PDF]:
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.

Round 2 in the censorship case just wrapped up. [Image Source: AP]
But the case was not over.  The Appeals court ruling meant that the case was yet again lofted to the Supreme Court.  That second hearing finally reached a ruling [PDF] this week, and the result was a reversal of the 2009 decision.  Ironically, the Supreme Court opted to yet again to refuse to rule on Constitutionality of the obscenity ban, meaning that the case may yet again be headed to more appeals.  Alternatively, similar cases may crawl up the court ladder and be heard by the Supreme Court in the future, who will likely eventually have to make up its mind regarding Constitutionality.

But for now TV broadcasters are free to beginning offering up profanities and nudity in their broadcast, which may make for saucier programming from fictional cop (melo)dramas to reality TV.

The reversal brings broadcast TV in line with the privileges enjoyed by its internet and cable television peers.  One final important note: sorry Eminem, radio broadcasters are still forbidden from airing profane commentary or songs — the last surviving bastion of FCC censorship.