Court Decision Striking Down Broadcast Indecency Ban is ‘Anti-Family,’ Says FCC Commissioner Copps
Judge Rosemary Pooler of the U.S. Court of Appeals for the 2nd Circuit wrote in the unanimous decision that the FCC policy of fining broadcasters for airing indecent language or programming was "unconstitutionally vague” and created a “chilling effect” on broadcasters.
"Under the current policy, broadcasters must choose between not airing or censoring controversial programs and risking massive fines or possibly even loss of their licenses, and it is not surprising which option they choose," Pooler wrote.
FCC Commissioner Michael Copps condemned the decision as “anti-family.”
“I am shocked by such an anti-family decision coming out of the Second Circuit Court of Appeals,” Copps said in a statement. “Sadly, the court focused its energies on the purported chilling effect our indecency policy has on broadcasters of indecent programming, and no time focusing on the chilling effect today’s decision will have on the ability of American parents to safeguard the interests of their children.”
Patrick A. Trueman, former chief of the Justice Department's Child Exploitation and Obscenity Section, said the decision by the New York-based court seems “foolish on its face.”
“How is the American public to understand that federal judges don’t know that use of the 'F-word' is indecent during prime-time television?” Trueman asked.
“This ruling only increases the public’s belief that government is out of touch with the public and out of step with the U.S. Constitution,” he added.
Trueman, a former federal prosecutor, was particularly irked by the fact that the three-judge panel ruled that FCC indecency standards were vague. The judges noted that the FCC had allowed the airing of expletives in the movie "Saving Private Ryan," but not in a PBS miniseries, "The Blues."
“There is nothing vague about federal indecency law, which has been in effect for decades and has always been thought to prohibit the ‘F-word’ on primetime television,” Trueman said.
Timothy Winter, president of the Los Angeles-based Parents Television Council, pointed out that in April of 2009, the U.S. Supreme Court upheld the FCC’s authority to apply the broadcast decency law to so-called “fleeting” expletives on the public airwaves. The appeals court reconsidered the case in light of the Supreme Court decision before issuing its ruling Tuesday.
“Let’s be clear about what has happened here today: A three-judge panel in New York once again has authorized the broadcast networks unbridled use of the ‘F-word’ at any time of the day, even in front of children,” Winter said. “The Court substituted its own opinion for that of the Supreme Court, the Congress of the United States, and the overwhelming majority of the American people. For parents and families around the country, this ruling is nothing less than a slap in their face.”
The FCC implemented standards on “fleeting indecency” after U2's Bono used the F-word during the 2003 broadcast of the Golden Globe Awards on NBC. Fox Television challenged the standards in 2006, after the FCC issued citations in connection with incidents in which Cher and Nicole Richie used profanity during awards shows in 2002 and 2003.
“Rock singer Bono has no more right to shout, 'f***ing brilliant' in the homes of unsuspecting American families than we would have in his,” Trueman said.
Both Winter and Copps called on FCC Chairman Julius Genachowski and the Obama administration to immediately appeal. Copps went even further.
“I call on this Commission to move forward immediately to clarify and strengthen its indecency framework to ensure that American parents can protect their children from the indecent and violent images that bombard us more and more each day,” Copps said. “These parents -- millions of them -- are waiting.”
In a statement, Genachowski said only that the commission will consider the ruling and what next to do.
Trueman represented the Family Research Council and Focus on the Family in filing a “friend of the court” brief in the case, Fox Television Stations v. Federal Communications Commission.
Fox Broadcasting, meanwhile, welcomed the decision, saying it was “extremely pleased” with the Second Circuit ruling.