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View Full Version : Fed. Court Strikes Down FCC's Indecency Policy, Says TV Profanity Ban 'Chills Speech'




bobbyw24
07-14-2010, 04:34 AM
NEW YORK — A federal appeals court on Tuesday struck down a government policy that can lead to broadcasters being fined for allowing even a single curse word on live television, saying it is unconstitutionally vague and threatens speech "at the heart of the First Amendment."

The 2nd U.S. Circuit Court of Appeals in Manhattan threw out the 2004 Federal Communications Commission policy, which said that profanity referring to sex or excrement is always indecent.

"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," the court wrote.

"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," it added.

The court said the FCC might be able to craft a policy that does not violate the First Amendment.

It cited several examples of chilled speech, including a Vermont station's refusal to air a political debate because one local politician previously had used expletives on the air and a Moosic, Pa., station's decision to no longer provide live coverage of news events unless they affect matters of public safety or convenience.

"This chill reaches speech at the heart of the First Amendment," the appeals court said.

In a statement, FCC Chairman Julius Genachowski said: "We're reviewing the court's decision in light of our commitment to protect children, empower parents, and uphold the First Amendment."

Carter Phillips, a Washington lawyer who argued the case for Fox Television Stations Inc., called the decision satisfying. He said the court had "sent the FCC back to square one to start over" by not only tossing the FCC's fleeting expletive policy but also a broader indecency policy as unconstitutionally vague.

Story continues below

http://www.huffingtonpost.com/2010/07/13/fcc-swear-word-censorship_n_644837.html

Dr.3D
07-14-2010, 05:45 AM
I've noticed the FCC has never published a list of words they consider profanity, but in the wording of their directives, they reserve the right to declare after the fact, they found a word offensive.

If they wish to have a law prohibiting certain language on the air, the least they could do is give a list of the offensive words. As it is now, nearly any word someone finds offensive and then contacts the FCC can suddenly become a problem for the people who own the station that aired the language. They have been vague for way too long and need to be specific as to what words are considered offensive.

Elwar
07-14-2010, 07:35 AM
No shit?

Krugerrand
07-14-2010, 07:52 AM
No shit?

Elwar, I find that offensive. Please pay the government as much money as they would like. :D

bobbyw24
07-14-2010, 06:02 PM
"This chill reaches speech at the heart of the First Amendment," the appeals court said.

tangent4ronpaul
07-14-2010, 07:42 PM
I've noticed the FCC has never published a list of words they consider profanity, but in the wording of their directives, they reserve the right to declare after the fact, they found a word offensive.

If they wish to have a law prohibiting certain language on the air, the least they could do is give a list of the offensive words. As it is now, nearly any word someone finds offensive and then contacts the FCC can suddenly become a problem for the people who own the station that aired the language. They have been vague for way too long and need to be specific as to what words are considered offensive.

They must have! How else could George Carlin come up with this?:

YouTube - The Seven Words (http://www.youtube.com/watch?v=3_Nrp7cj_tM)

Isn't it wonderful that the nanny state mandates imposing their morality on us to "protect the children"? Yet it seems to have failed, as I have a distinct memory of my daycare (pre-kinder-garden) provider washing my mouth out with soap for uttering such a word - and I musta heard it somewhere? Right? Major FAIL!

This `patently offensive' biz is interesting. I guess they will have to spell out what is and is not offensive. {"Dear FCC, could you please advise me as to what does and does not constitute a "donkey show", I was going to take junior to a petting zoo tomorrow, and am worried that I might be exposing him to something bad - thanks, a concerned soccer mom") Oh wait! That would mean they would have to put it on the Internet, and as they are trying to twist Internet communications into being "broadcasts", that would mean the FCC would be broadcasting indecency in order to tell people what is indecent... Def chicken and egg situation here...

The double standards here reek! Did anyone hear of the FCC going after Biden for his "This is some serious shit" comment to Obama at the nationally broadcast press conference on the passage of the Health Care Bill, yet the NFL gets fined millions for a "nipple slip". For that matter, there are torrents out there that are compilations of nationally broadcast shows of runway models "wardrobe malfunctions", yet you never hear about these shows getting fined...

Yes, I have to concede, that if we are to remove profanity from our society we will have to pass the EYEBORG legislation and have them "goose" every potty mouth with a tazer for every indiscretion. It's the only way. It's FOR THE CHILDREN! :rolleyes:

-t

Dr.3D
07-14-2010, 07:55 PM
They must have! How else could George Carlin come up with this?:

~snip

Well, here is all I can find as to the FCC definition.
http://www.fcc.gov/cgb/consumerfacts/obscene.html

tangent4ronpaul
07-14-2010, 08:07 PM
Well, here is all I can find as to the FCC definition.
http://www.fcc.gov/cgb/consumerfacts/obscene.html

HOT DAMB! - I think you have the ticket!


Obscene Broadcasts Are Prohibited at All Times

Obscene material is not protected by the First Amendment to the Constitution and cannot be broadcast at any time. The Supreme Court has established that, to be obscene, material must meet a three-pronged test:

*

An average person, applying contemporary community standards, must find that the material, as a whole, appeals to the prurient interest;
*

The material must depict or describe, in a patently offensive way, sexual conduct specifically defined by applicable law; and
*

The material, taken as a whole, must lack serious literary, artistic, political, or scientific value.

YES! - we finally have the tool to rid this country of it's cancer! Every word spoken by Obama, Ried adn Pelosi meets all three prongs! -- get busy writing those complaint letters about the SCREWING RAPE! of our country and the Constitution!

-t

tangent4ronpaul
07-15-2010, 12:16 AM
Friend of mine is "into" sex crimes law, I forwarded the original OP piece to him and got his OK to post his responce to me sent via private e-mail:


Thanks for that link. I sent a copy to some friends, including a radio station programming consultant, with the following comments:

===

This article is so wrong in so many of the historic citations of supposed fact attributed to the judge, it's amazing Judge Pooler came to a legally proper result with such poor grasp of legal history.

http://www.huffingtonpost.com/2010/07/13/fcc-swear-word-censorship_n_644837.html

Among many other false statements, there was never a list of 7 FCC restricted words, but rather the FCC v. Pacifica Appendix transcript of a Carlin monologue was based on an example of an Ed Albee play and some issues in the San Francisco market raised by Pacifica (nonprofit foundation operating in a number of major markets) predating the recording of a live Carlin appearance, later played on Pacifica's NYC outlet. Also, the perverse bigotry in FCC policies is rooted in the Communications Act of 1934, a problem with Congress in what otherwise converted the Federal Radio Commission to the FCC, and was already litigated extensively in the 1950's, not first in 1975. There are too many such errors of fact to list them all (don't judges get taught stuff like, say, basic research, and fact checking, like back in law seminary before they get the Bar card, never mind the black dress?). Admittedly, unlike some judges apparently, I've actually studied this stuff, have done work for Pacifica, and knew Phil Kane (interesting guy, FCC District Director in 'Frisco in the precursors to the Pacifica case years later cross country, and a former college prof and Electrical Engineer before going back for a law degree).

The FCC's official position when Pacifica inquired as to the legality of airing a dramatic reading of Albee's play as a holiday special for the 'Frisco market was that they couldn't answer. If they said it was legal and got complaints, that might preclude their duty to investigate and possibly issue sanctions. If they said it was illegal and turned out wrong, that would be illegal prior restraint.

That at least was an honest and accurate reflection of defective law from Congress, that almost defines the "void for vagueness" ruling Jacobellis v Ohio applied to refuse pressures to define "pornography" in 1964 ("porn is whatever gives Justice Stewart a hard-on."), but it should have resulted in flushing as invalid those elements of the Communications Act back then, not pretending they reflected anything but subjective prejudice and bigotry, that got cranked up by the Bush regime operatives (like Colin Powell's kid placed as FCC Chairman, a cooperative GOP stooge).

As with so many such cases, they skip the 1st Amendment religion position, that just as in art or other censorship on the street, in addition to "vagueness" doctrine where a law is illegal if it's not possible to determine precisely whether a given act complies or violates, law is also illegal that's intended to favor select religious values absent narrow construction and compelling state interest. Even under a Supreme Court infested with Catholic lawyers with strongly biased world views as such, Vatican dogma from centuries ago is not a valid basis for US laws, including their included or assumed definitions:

http://www.cnn.com/2010/TRAVEL/07/13/european.nudes/index.html?hpt=C2

Anyway, time for you to change music rotations, and play a rotation of Eminem and his classic "Fuck the FCC". It seems to be legal and properly protected speech now, including between 6 am and 10 pm.

-t

Krugerrand
07-15-2010, 05:52 AM
...
Isn't it wonderful that the nanny state mandates imposing their morality on us to "protect the children"? Yet it seems to have failed, as I have a distinct memory of my daycare (pre-kinder-garden) provider washing my mouth out with soap for uttering such a word - and I musta heard it somewhere? Right? Major FAIL!
...

I'm one of those folks who, years back, would have supported "parent's rights to suspect decency on tv."

The problem with this logic is so clear now - and you summarized it nicely. First of all, the government will always fail. So, if you rely on the government to impose decency, you are asking for failure.

On top of that, parents should not assume that they can count on somebody else to look out for their children. If fewer trusted government oversight of the tv stations, they may actually turn the tv off more frequently - which would be a huge help for kids on so many levels.

AND - is there a free market solution (for those who perceive a problem) to this - there sure is! (except when the government interferes with it.)

tangent4ronpaul
07-15-2010, 04:23 PM
AND - is there a free market solution (for those who perceive a problem) to this - there sure is! (except when the government interferes with it.)

umm... washing the kids mouth out with soap? Unfortunately, any parent that tried to these days would get their kids abducted by CPS and any daycare provider that tried it would get their license pulled and be brought up on charges. Isn't it just great how the gvmt "protects" us? :rolleyes:

-t

MRK
07-15-2010, 06:00 PM
No shit?

Reported.