Second Circuit stunningly finds FCC’s indecency policy unconstitutional

Jul 15, 2010 Second Circuit stunningly finds FCC’s indecency policy unconstitutional

Last year, I blogged about the Supreme Court’s 5-4 decision permitting the FCC to fine broadcasters for fleeting expletives, and leaving the Second Circuit to consider remaining Constitutional matters.

On July 13, 2010, the Second Circuit found that the FCC’s indecency policy is unconstitutionally vague. Fox, et al. v. FCC, ___ F.3d ___ (2d Cir., July 13, 2010). This result is absolutely and wonderfully stunning.

Here is among the best quotes from Fox v. FCC (be forewarned of salty language):

For instance, while the FCC concluded that “bullshit” in a “NYPD Blue” episode was patently offensive, it concluded that “dick” and “dickhead” were not. Omnibus Order, 21 F.C.C. Rcd 2664, at 127-128. Other expletives such as “pissed off,” up yours,” “kiss my ass,” and “wiping his ass” were also not found to be patently offensive. Id. at ¶ 197. The Commission argues that its three-factor “patently offensive” test gives broadcasters fair notice of what it will find indecent. However, in each of these cases, the Commission’s reasoning consisted of repetition of one or more of the factors without any discussion of how it applied them. Thus, the word “bullshit” is indecent because it is “vulgar, graphic and explicit” while the words “dickhead” was not indecent because it was “not sufficiently vulgar, explicit, or graphic.” This hardly gives broadcasters notice of how the Commission will apply the factors in the future.

Fox, et al. v. FCC, ___ F.3d ___.

I anticipate that the FCC will seek en banc review or else will go straight to filing a certiorari petition to he Supreme Court. Or maybe the FCC will first try to go back to teh drawing board with its decades-old flawed indecently rules.

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