The US Supreme Court has ruled that the FCC can penalize broadcasters for airing as little as one single expletive over the air. The decision will not affect cable TV, satellite broadcasts or the Internet, none of which is transmitted over public
In a 5-4 decision written by Justice Antonin Scalia, the court reversed a ruling by the 2nd U.S. Circuit Court of Appeals that said the FCC's decision to sanction fleeting expletives was arbitrary and capricious under federal
law. That court decision had agreed with Fox Television stations, which broadcast the Billboard Music Awards, that such isolated utterances are not as potentially harmful to viewers as are other uses of sexual and excretory expressions long deemed indecent
and banned by federal regulators.
Even isolated utterances can be made in vulgar and shocking manner, and can constitute harmful first blows to children, Scalia wrote in the opinion.
Dissenting were liberal Justices John Paul
Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer. In a statement by Breyer, signed by the others, they said the FCC failed adequately to explain why it changed its indecency policy from a policy permitting a single 'fleeting use' of an
expletive, to a policy that made no such exception.
The court pointed out that broadcasters can go back to the federal appeals court in New York and argue that the FCC policy violates the 1st Amendment.
Bono's televised strong
language at the 2003 Golden Globes led the FCC to reverse a longstanding policy that had punished only repeated expletives and declare that a single use of certain words could be sanctioned as indecent.
The new policy was developed under FCC
Chairman Kevin Martin, a George W. Bush appointee who resigned in January.
The US Supreme Court has ordered a re-examination of a ruling that threw out a fine over Janet Jackson's wardrobe malfunction during 2004's Super Bowl.
FCC censors had initially fined CBS TV $550,000 (£368,000) in September 2004 for
airing the glimpse of Jackson's breast during the broadcast.
But an appeals court quashed it in July last year saying the watchdog acted arbitrarily in issuing the fine.
Now the high court has directed the 3rd US Circuit Court of
Appeals in Philadelphia to consider reinstating the fine imposed by the FCC.
The order follows a high court ruling last week that upheld the FCC's policy that subjects broadcasters to fines against even single uses of swear words on live
television. Last year, the appeals court threw out the fine against CBS, saying that as the incident lasted nine-sixteenths of one second, it should have been regarded as "fleeting".
Lawyers for CBS had urged the Supreme Court to
reject the FCC's appeal.
A New York court has struck down the TV censor's rules banning fleeting expletives on TV.
According to the Associated Press, the court has overturned a Federal Communications Commission (FCC) policy, saying that the agency's guidelines for
fleeting expletives and other indecencies in broadcast violate the First Amendment.
The policy went into effect in 2004, at a time when indecency in broadcast was a hot issue, right after Janet Jackson's notorious wardrobe malfunction
at the Super Bowl.
Now, the three-judge panel in New York has decided to overturn the policy because they believe the FCC's policy is unconstitutionally vague, creating a chilling effect that goes far beyond the fleeting expletives at issue
The appeals court added that the chilling effect would lead to mass censorship of potentially valuable material, because broadcasters have no way of knowing what the FCC will find offensive.
The Federal Communications Commission (FCC) is appealing a federal court ruling that its indecency policy is unconstitutional, arguing the decision makes it all but impossible for the agency to enforce restrictions on broadcasting nudity or profanity.
The Second Circuit Court of Appeals in New York struck down the FCC's indecency policy last month, calling it a violation of the First Amendment. The court said the rule forces broadcasters to self-censor in order to avoid fines for accidentally
broadcasting nudity or profanity.
The FCC filed a petition asking the court to reconsider the decision. The three-judge panel's decision in July raised serious concerns about the Commission's ability to protect children and families from
indecent broadcast programming, FCC general counsel Austin Schlick said. The Commission remains committed to empowering parents and protecting children, and looks forward to the court of appeals' further consideration of our arguments.
The matter is expected to eventually reach the Supreme Court, which upheld the FCC's policy last year on procedural grounds but did not address the constitutional arguments.
The case stems from live broadcasts of the Billboard Music Awards in 2002 and 2003, during which musician Cher and reality television performer Nicole Ritchie used unscripted expletives.
The FCC changed its indecency policy in 2004
following a similar incident at the Golden Globes involving U2 lead singer Bono. The agency began to levy record fines against broadcasters for fleeting expletives uttered on live television.
The Commission ruled in 2006 that, under its new
policy, both Billboard broadcasts were indecent. Fox, which broadcast the awards shows, responded by appealing that decision. In its appeal Fox was joined by other broadcasters who opposed the FCC's stricter enforcement policies.
The court of
appeals initially ruled in favor of the broadcasters, claiming the FCC had failed to properly articulate a reason for the rule changes, but their decision was reversed by the Supreme Court. The court of appeals then ruled in favor of Fox on
constitutional grounds, setting the stage for the FCC's latest appeal.
A federal appeals court has struck down a penalty imposed on ABC by the FCC in 2003.
The $27,500 fine was originally charged after an episode of cop drama NYPD Blue contained a brief shot of a woman's nude buttocks.
According to the
Associated Press, the 2nd US Court of Appeals has now ruled that since television stations are not fined for fleeting, unscripted profanities in live broadcasts, the brief nudity should not have resulted in a penalty.
The FCC previously
claimed that the scene dwelled on the nudity of actress Charlotte Ross and was shocking and titillating .
President Barack Obama's administration apparently likes its entertainment served up family-style: it has asked the US Supreme Court to review a court decision that defanged the FCC's restrictions on TV profanity and nudity.
In two separate
decisions, a federal appeals court in New York ruled that the FCC's indecency policy was too vague to be applied in two rather blatant situations. One involved the use of 'fuck' on an awards shows on the FOX network, and the other concerned full-frontal
nudity of a woman on ABC's NYPD Blue. In both cases, the court ruled that the FCC could not impose fines.
Now, acting US Solicitor General Neal Katyal is filing an appeal to the Supreme Court, saying the precedent now precludes the
commission from effectively implementing statutory restrictions on broadcast indecency that the agency has enforced since its creation in 1934.
If the court accepts the case, it will in the coming weeks.
The Supreme Court has announced that it will take up a case to determine whether the Federal Communications Commission (FCC) enforcement of broadcast decency rules is constitutional.
The court will begin to hear arguments this fall in what is
expected to be a fierce battle between the TV censors and the broadcasters over First Amendment interpretations.
The FCC's role as an arbiter of what is and isn't prudent to air during hours when children may be watching has come under intense
scrutiny. Nutter complaints about broadcast TV and radio have skyrocketed in recent years.
We are hopeful that the Court will affirm the Commission's exercise of its statutory responsibility to protect children and families from indecent
broadcast programming, a spokesman from the FCC chairman's office said in a statement.
Last year, the Court of Appeals in New York sided with broadcasters, saying the FCC's authority as decency watchdog was vague and that its enforcement could
have a chilling effect on the broadcast industry.
A US federal appeals court has again threwn out a $550,000 fine against CBS by the US TV censors of the Federal Communications Commission (FCC) for Janet Jackson's wardrobe malfunction during the 2004 Super Bowl halftime show.
States Court of Appeals for the Third Circuit in Philadelphia had issued a similar ruling in July 2008. But that decision was sent back to the appeals court in May 2009 by the Supreme Court after it ruled in a separate case that the FCC had the right to
hold broadcasters accountable even for unscripted and isolated foul language.
The appeals court heard another round of arguments in the Janet Jackson case in February 2010. It has now ruled that while the FCC had the authority to police fleeting
images, the nipple-baring episode was on-screen for nine-sixteenths of a second, the commission acted arbitrarily because it had not announced that it had changed its policy until after it decided to fine CBS.
The FCC failed to acknowledge that
its order in this case reflected a policy change and improperly imposed a penalty on CBS for violating a previously unannounced policy, the appeals court said in a 2-to-1 decision written by Judge Marjorie O. Rendell and joined by Judge Julio M.
The majority said the decision by the FCC was arbitrary and capricious because the commission did not announce that it was stiffening its guidelines for fleeting material until March 2004, after the February 2004 Super Bowl
Starting this Tuesday, the US Supreme Court will begin hearing arguments in Case No. 10-1293, better known as Federal Communications Commission, et al v. Fox Television Stations, Inc., et al.
The case will revive a discussion, and start a process
to determine, on what federal indecency restrictions should be placed on radio and television broadcasters.
The Supreme Court case concerns incidents at the Billboard Music Awards , shown on Fox. At the 2002 show, Cher referred to critics
of her work by saying Fuck 'em. I still have a job and they don't. A year later, Nicole Richie said, Have you ever tried to get cow shit out of a Prada purse? It's not so fucking simple.
The FCC concluded that the broadcasts violated
its indecency regulations, though the agency stopped short of imposing fines. Federal law lets the FCC levy a $325,000 fine on each station that airs indecent material between 6 a.m. and 10 p.m.
The case will also look at a scene involving brief
nudity on a 2003 episode of NYPD Blue.
Of course, the upcoming ruling will also affect radio broadcasters, who are under essentially the same indecency guidelines as their television counterparts. The Obama administration has stated in
court that broadcasters should present a relatively safe medium for...children. One hopes, however, that while this case looks at off-the-cuff profanity, the FCC will begin to move closer to specific guidelines so broadcasters can be certain what
is, in fact, deemed indecent and what isn't.
Update: Court hears government case for TV censorship
The Supreme Court appeared ready to give government regulators the continuing authority to regulate profanity and sexual content on broadcast television after a lively hour of arguments.
The justices and lawyers all stayed polite, not actually
using any obscene words, preferring the legally acceptable f-bomb or s-word to describe the controversial content at issue in the high-stakes free speech dispute.
The court will decide whether the Federal Communications Commission
may constitutionally enforce its policies on fleeting expletives and scenes of nudity on television programs, both live and scripted.
In many televised instances, one cannot tell what is indecent and what isn't said Justice Ruth
Bader Ginsburg. It's the appearance of arbitrariness about how the FCC is defining indecency in concrete situations, she added.
But with so many programming choices on broadcast, cable and satellite TV, All the government is asking for
is a few (broadcast) channels where you can say -- they are not going to hear the s-word, the f-word. They are not going to see nudity, Chief Justice John Roberts said.
The court's ruling, which will come in a few months, could establish
important First Amendment guidelines over explicit content on the airwaves.
The US TV censors of the Federal Communications Commission has asked the Supreme Court to review a lower court's decision to rescind the $550,000 fine the FCC gave CBS after the Janet Jackson wardrobe malfunction at the Super Bowl halftime show in
In January, the U.S. 3rd Circuit Court of Appeals denied a full-court rehearing of the 2011 decision by a three-judge panel that the FCC's fine of CBS stations was arbitrary and was a policy change for which CBS stations were improperly
The FCC said in its petition that the court should not have found that its indecency policy was an arbitrary and capricious departure from precedent.
The Obama administration has asked the Supreme Court to review a federal court's decision that the FCC acted capriciously in levying huge fines for a 1/2-second nipple shot. In this regard, they are clones of the Bush Administration. And in this regard
they are no friend of the American people, no friend of free speech, no friend of freedom.
So why are two successive presidencies, not to mention the national morality apparatus, obsessed with a half-second of nipple? Why are
millions more of your tax dollars about to be spent attempting to punish CBS for what they failed to prevent over 8 years ago?
Broadcasters have won the latest round in their long running battle with US TV censors over the limits of decency on the small screen.
In a Supreme Court judgment, the justices sided with Fox and ABC against the Federal Communication Commission
(FCC) over the broadcasting of momentary expletives and nudity.
The ruling related to two separate incidents in which the FCC moved against broadcasters for indecency transmitted before the 10pm watershed. The first concerned a Fox broadcasting of
the Billboard Music Awards in 2002 in which Cher said fuck on live TV, followed by a similar expletive by Nicole Richie at the same awards the following year. The second was a 2003 episode of NYPD Blue , in which the actress
Charlotte Ross exposed her backside for seven seconds.
The FCC fined ABC $1.4m for indecency, but this seemed to be a sudden change in policy in response to pressure from moralist campaigns.
The supreme court found that in both cases the
broadcasters had been given insufficient notice to be aware that they were in breach of the rules. Previous decisions by the FCC, the court noted, had taken no action against TV networks for isolated and brief moments of nudity. The judgement said:
Regulated parties should know what is required of them so they may act accordingly; and precision and guidance are necessary so that those enforcing the law do not act in an arbitrary or discriminatory way. When speech is
involved, rigorous adherence to those requirements is necessary to ensure that ambiguity does not chill protected speech.
The long legal battle between CBS and the Federal Communications Commission over Janet Jackson's wardrobe malfunction during the 2004 Super Bowl halftime show is over.
The Supreme Court has refused to hear the FCC's request to reinstate a
$550,000 indecency fine against CBS for the halftime performance featuring Jackson and Justin Timberlake, who at the end of a song tore a piece of Jackson's top, exposing her bare breast to an audience of about 90 million.
So the legal trail end
at the last judgement in November when an appeal court in Philadelphia upheld its earlier ruling that the FCC's indecency fine against the network was invalid. The court didn't say whether the incident was indecent but said the FCC's fine represented an
undisclosed change in the enforcement of its policy with regard to fleeting images and hence could not be enforced.
In a statement, CBS said it was gratified to finally put this episode behind us and noted that at every major turn
of this process, the lower courts have sided with us. The network added that since the Super Bowl, it has added delays to all live programming to prevent similar incidents from happening.
After the US Supreme Court's decision in FCC v. Fox Television Stations in September 2012, FCC Chairman Julius Genachowski has initiate a review of the Commission's broadcast indecency policies and enforcement to ensure they are fully consistent with
First Amendment principles.
In the interim, the Chairman directed the Enforcement Bureau to focus its indecency enforcement resources on egregious cases and to reduce the backlog of pending broadcast indecency complaints.
The Bureau has
reduced the backlog by 70% so far, more than one million complaints, principally by binning them on the grounds that it had taken so long to process them that they were too stale to pursue.
The FCC now seek comments on whether the full Commission
should make changes to its current broadcast indecency policies or maintain them as they are.
Update: American Family Association have their two Penneth
The American Family Association, a major pro-family group, has announced that Americans should petition the FCC to uphold high television, radio decency standards.
In addition to the overarching negative impacts of indecency in media on
children, a more immediate issue exists: radio 'shock jocks' that thrive on shocking even the most hardened of sensibilities will have even greater latitude to express even more profanity without the worry of FCC censure, states AFA.
Last week, ABC, CBS, FOX, and NBC each filed individual requests to the US TV censors of the FCC asking for the removal of government-regulated indecency standards.
According to FCC.gov:
It is a violation
of federal law to air indecent programming or profane language during certain hours. Congress has given the Federal Communications Commission (FCC) the responsibility for administratively enforcing these laws, the FCC's website continues. The FCC may
revoke a station license, impose a monetary forfeiture or issue a warning if a station airs obscene, indecent or profane material.
In response to the current laws, the major TV networks expressed their desires to overturn the
restrictions of the FCC's indecency standards.
The FCC should affirm that it has no right to deny broadcasters the same First Amendment protections enjoyed by every other medium of
Broadcast TV is not a uniquely pervasive presence in the lives of 21st century Americans.
The Parents Television Council (PTC) has issued a press release commenting on the FCC proposal to end fines for broadcasting fleeting strong language and nudity like Janet Jackson's 'wardrobe malfunction'.
The PTC President Tim Winter wrote in
a press release:
The FCC asked for the public's comment, and they got it. By a margin of nearly 1,000 to 1, the American public told the FCC to enforce existing broadcast indecency law, and not to weaken it. The only
question now before the FCC is whether to heed or disregard the public's comments that they, themselves, asked for.
The broadcast networks and their agents continue to cloud the issue at hand by arguing against the very existence
of the broadcast indecency law. They are trying to re-litigate the Supreme Court cases that they lost, rather than focus on the FCC's proposal to focus only on 'egregious' instances of indecency.
It is essential for the FCC to
remember whose interest it is that they are mandated by Congress to serve. The sheer volume of public comments -- over 102,000 comments that were individually filed by individual Americans, and were roughly 1,000 to 1 in favor of keeping existing
indecency standards -- speaks louder than the broadcast networks that want to dismantle the law.
The American people have spoken. We call on the FCC to hear and to heed the public's overwhelming support for the existing broadcast
indecency law. And we call on the Commission to reject the proposed change to the law as crafted by its outgoing and now-departed chairman.
The US TV censors of the Federal Communications Commission (FCC) have announced that they intends to fine a local TV station WDBJ7 $325,000 for airing sexually explicit material during a 6 o'clock newscast three years ago. The story aired about an adult
film star who joined a local fire rescue squad.
The TV company obtained the troublesome video image online from the website of a distributor of the woman's adult films. The website, which was partially displayed along with the video image, is
bordered on the right side by boxes showing video clips from other films that do not appear to show the woman who is the subject of the news report. One of these video clips, displayed in a box, contains the image of sexual activity involving
manipulation of an erect penis. Although the box does not show the entire body or face of the apparently nude male depicted, the image shows a hand moving up and down the length of the shaft of the erect penis. WDBJ asserts that this image was displayed
for less than three seconds.
The commission explained its arbitrary lynch mob justice:
Our action here sends a clear signal that there are severe consequences for TV stations that air sexually explicit
images when children are likely to be watching.
WDBJ7's President and General Manager, Jeffrey Marks, issued a statement:
We are surprised and disappointed that the FCC has decided to propose to
fine WDBJ7 for a fleeting image on the very edge of some television screens during a news broadcast. The story had gone through a review before it aired. Inclusion of the image was purely unintentional. The picture in question was small and outside the
viewing area of the video editing screen. It was visible only on some televisions and for less than three seconds.
This year, WDBJ7 celebrates 60 years of broadcasting in the public interest, with news that is trusted and family
friendly. We are sorry that this incident happened, of course, but we truly believe that the FCC failed to take into account the history of WDBJ7 and its six decades of outstanding broadcasting.
The enormous fine proposed by the
FCC is also an extraordinary burden on protected speech. The FCC's largest base fine for other types of violations by broadcasters is $10,000. That is the fine for a misrepresentation to the FCC. A transfer of a license without authorization has a fine
of only $8,000; use of a station to commit fraud results in a fine of $5,000; broadcast of an illegal lottery costs a station $4,000. As the FCC admits, its base forfeiture for a violation of the indecency rules is $7,000. This unprecedented proposed
fine is more than 46 times higher than the FCC's own determination of the punishment for indecent speech.
As the FCC noted, Schurz Communications --- in its 60-plus year history of TV ownership -- has paid only one other FCC fine.
That was for a minor and self-reported Children's Video issue.