Indecency Ruling Against Fox TV Tossed Out

Tod Hunter
NEW YORK — A federal appeals court vacated a 2006 indecency ruling against the Fox TV network Monday. In a 2-1 decision, the U.S. Court of Appeals for the 2nd Circuit in New York ruled that the FCC went too far in issuing a 2006 indecency decision against Fox for separate incidents in 2002 when singer Cher said, "Fuck 'em," and in 2003 when celebrity Nicole Richie said, "It's not so fucking simple," live on television at the Billboard Music Awards.

In 2004, the Federal Communications Commission ruled that the broadcast use of the word "fuck" almost always violates federal indecency statutes. These incidents occurred before that ruling, so the agency did not call for fines but still ruled that the broadcasts were indecent.

Fox appealed the FCC ruling, arguing that the profanities were fleeting and that the FCC's 2004 rule set a dangerous precedent against free speech.

On Monday the court sided with Fox, vacating the ruling.

"We find that the FCC's new policy regarding 'fleeting expletives' represents a significant departure from positions previously taken by the agency and relied on by the broadcast industry," the decision said, going on to state that the majority opinion found that the FCC failed to "articulate a reasoned basis for this change in policy."

Attorney Jeffrey Douglas, who specializes in 1st Amendment cases, agrees. "The FCC has far more discretion than the 1st Amendment can tolerate," he told XBIZ. "In the last six years, they have been systematically abusing that authority by acting arbitrarily, not following their own rules, not following anything."

"The significance of this ruling is that it avoids the FCC playing games to try and evade judicial review. They specifically chose not to fine Fox and then turned around and argued that because they didn't fine Fox, Fox had no standing to review their findings. That is, essentially a cheap trick, and it's wonderful that the court of appeals saw through that trick."

In a separate case, CBS Corp. is challenging the FCC's indecency ruling against singer Janet Jackson's "wardrobe malfunction" at the 2004 Super Bowl halftime show. That case is pending.