Earlier this month, the 2nd U.S. Circuit Court of Appeals found that the Federal Communications Commission’s new policy regarding fleeting expletives is “arbitrary and capricious under the Administrative Procedure Act,” and vacated the FCC’s order.
In response to the court's ruling, FCC Chairman Kevin Martin had a few choice words, including several indecent ones, for the court.
“I completely disagree with the court’s ruling and am disappointed for American families,” Martin said. “I find it hard to believe that the New York court would tell American families that ‘shit’ and ‘fuck’ are fine to say on broadcast television during the hours when children are most likely to be in the audience.”
Martin also took issue with statements the court made about the commission, and said that it was the court, not the FCC, that was out of line.
“The court even says the commission is ‘divorced from reality,’” Martin said. “It is the New York court, not the commission, that is divorced from reality in concluding that the word ‘fuck’ does not invoke a sexual connotation.”
Martin asserted that as a result of the court’s ruling, the airwaves will now be flooded with obscenities that the commission will be helpless to stop.
“If we can’t restrict the use of the words ‘fuck’ and ‘shit’ during prime time, Hollywood will be able to say anything they want, whenever they want,” Martin said.
Attorney Jeffrey Douglas, 1st Amendment expert and chairman of the Free Speech Coalition, told XBIZ that Martin’s characterization of the court’s ruling was a “gross distortion of what the court ruled.”
“The only way you can take that position is if you haven’t read the ruling,” Douglas said.
Douglas noted that the court’s ruling pertains to the use of “fleeting expletives” only, will not result in the sort of flood of indecent language on broadcast TV that Martin envisioned. Douglas also observed that most broadcasters have not pushed the limit of the language they broadcast to the limit of the law, historically.
“By the FCC’s own policy and interpretations, there is virtually no restriction on what you can say after 11 p.m.,” Douglas said. “Yet, if you tune in to one of the broadcast networks after that time, you would be hard-pressed to find a single utterance of the word ‘fuck.’”
Martin also used the occasion as another opportunity to stump for “a la carte” programming, saying that the court’s decision underscores the importance of Congress considering “content neutral solutions to give parents more tools and consumers generally more control and choice over programming coming into their homes.”
“All of the potential versions of a la carte would avoid government regulation of content while enabling consumers, including parents, to receive only the programming they want and believe to be appropriate for their families,” Martin said. “Providing consumers more choice would avoid the 1st Amendment concerns of content regulation, while providing real options for Americans.”