Fleeting Expletives Legislation Talking Points

Why S. 1780 (the “fleeting expletives” bill) is Unwise, Unnecessary, and Unconstitutional

S. 1780 would reinstate the Federal Communications Commission’s (FCC) ability to prohibit the use of any profanity from 6 a.m. to 10 p.m. on broadcast television. The bill is unwise, unnecessary, and unconstitutional.

For nearly thirty years, the FCC appropriately found that the broadcast of a fleeting expletive did not implicate the indecency rules.  Then, in 2003, in Fox Television Stations v. FCC, the FCC abruptly changed that policy, finding that any use of certain words presumptively constituted indecency.  The FCC has emphasized, however that “such words may not be profane in specified contexts.” Thus, broadcasters are left with little guidance as to what particular contexts make certain expletives “profane” or “indecent.”

In June, 2007, the United States Court of Appeals for the Second Circuit found that the FCC’s policy on “fleeting expletives” was arbitrary and capricious and without foundation. Consequently, the court invalidated the FCC’s findings of indecency imposed on several examples of fleeting expletives, and asked the FCC to provide its basis for changing its policy. The court also noted that current law made it highly unlikely the FCC would be able to provide a basis for its decision that would withstand First Amendment scrutiny.

S. 1780 Is Bad Policy

• S. 1780 is little more than an attempt to take away the courts’ jurisdiction over this matter in order to give the FCC cover for its constitutionally flawed indecency policy.
• While S. 1780 may give some legitimacy to the FCC’s rationale for its fleeting expletives policy, it completely ignores the substantial constitutional questions raised by the Second Circuit.
• On September 11, 2007, the Third Circuit heard oral arguments in CBS v. FCC. Many of the same arguments made successfully in the Second Circuit were made in this case.
• The FCC chose not to appeal its loss in the Second Circuit. The Solicitor General’s Office has until October 4 to decide whether to appeal the Second Circuit decision, and the Third Circuit will not rule immediately.
• If the FCC is convinced it is on solid constitutional footing, the appropriate way to deal with the situation is to appeal an adverse ruling. Passing an unconstitutional bill does nothing to address the situation.

The Alleged Increase in Complaints About Indecency Do Not Evidence An Increase in “Indecency”

• Much of the alleged increase results from the change in the way the FCC tallies complaints.
• In early 2004, the FCC began counting identical indecency complaints multiple times according to how many commissioner’s offices and other divisions of the FCC receive the complaint, instead of as single complaints in accordance with the previous policy.
• Because of these changes, between 2002 and 2004, complaints grew by more than 100 times. However, the number of programs that were the subject of complaints actually dropped by 20% over the same two-year period.

Parents Already Have Sufficient Tools to
Protect Their Children

• Approximately 85% of households receive their broadcast television through cable. All of the tools available to cable (channel blocking, program blocking, and so forth) are available for broadcast television.
• Technology already exists to control “fleeting expletives.” Over seven million Americans currently use TVGuardian systems, which bills itself as “The Foul Language Filter.”
• TVGuardian’s set-top boxes filter out profanity by monitoring the closed-caption signal embedded in the video signal and comparing each word against a dictionary of more than 150 offensive words and phrases. If the device finds a profanity in this broadcast, it temporarily mutes the audio signal and displays a less controversial rewording of the dialog in a closed-captioned box at the bottom of the screen.
  • The device can also be tailored to individual family preferences to edit out references that some might consider religiously offensive.
• Between technology and education, dramatic advances have occurred. Parents have the tools and the power to protect their children. There is little justification for the FCC acting as the nation’s “nanny.”

The FCC’s Vague Standards Have Resulted in Uncertainty About What Constitutes “Indecency”

• The WB network in March 2006 censored an episode of “The Bedford Diaries” over objections by its creator because of fears that the FCC would impose fines over language and situations contained in the show.
• Also in 2006, some CBS affiliates refused to air a documentary on the September 11 terrorist attacks because of concerns about language used by firefighters portrayed in the movie.
• In 2004, various ABC affiliates refused to air “Saving Private Ryan” over concerns that the repeated use of certain expletives would result in fines.
• Paradoxically, the FCC found that “Saving Private Ryan” (a fictional work) did not violate indecency standards even with its repeated use of expletives, but found indecent a documentary entitled “The Blues: Godfathers and Sons” in which the interviewees used various expletives.
• More recently, some PBS affiliates were wary of broadcasting a fourteen hour Ken Burns documentary entitled “The War,” because it included approximately four profanities.
• S. 1780 does nothing to clear up the confusion about what constitutes indecency. It merely states that the FCC shall maintain a policy that indecent or profane material may include a single word or image.

Uncertainty as to what is “indecent” leads to a
chilling of speech

• Guessing incorrectly whether a program is or is not “indecent” can have important ramifications for a broadcaster, including huge fines and possibly loss of its broadcasting license.
• Vague laws and interpretations create traps for broadcasters because they are unsure what conduct or speech will constitute indecency. Vagueness chills communications that may well NOT be indecent or profane, simply because the cost to the broadcaster of being wrong is too great.
• Vagueness encourages silence instead of robust debate.  The uncertainty inherent in the definition (or lack thereof) of “indecency” inevitably leads broadcasters to avoid certain speech. To do otherwise risks a finding of “indecency” and potentially disastrous liability.
• All of this is fundamentally inconsistent with the “uninhibited, robust, and wide-open” debate contemplated by the First Amendment.

The Foundation of the FCC’s Authority to Regulate
Indecency Has Crumbled

• The FCC primarily relies upon FCC v. Pacifica Foundation, 438 U.S. 726 (1978) as its authority to regulate indecency. Much has changed since 1978 that makes that reliance constitutionally questionable.
• The decision was not a strong endorsement of FCC authority. It was a fragmented decision (5-4) that neither approved a particular standard for indecency, nor upheld a substantive penalty against the licensee. Since Pacifica, the Supreme Court has acknowledged that the FCC’s definition of indecency was not endorsed by a majority of the Justices, and has repeatedly described the decision as an “emphatically narrow holding.”
• The rationale for the Pacifica decision, that “the broadcast media have established a uniquely pervasive presence in the lives of all Americans,” is highly questionable in this era of cable, satellite and the Internet, all of which compete with broadcast television.
• Despite the pervasiveness of all media in general, the government has only been allowed limited content regulation of the broadcast media.
• The Court since Pacifica has invalidated government-imposed indecency restrictions on cable television, despite its “pervasiveness.”
• In Reno v. ACLU, the Court for the first time subjected the indecency definition (in the Internet context) to rigorous scrutiny, and by a vote of 9-0, found it to be constitutionally deficient.
• For all of these reasons, the Second Circuit opined that it was unlikely the FCC could constitutionally support its position regulating fleeting expletives.