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Court to FCC: Clean Up Your Act on Dirty-Word Rules

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A federal appeals court yesterday struck down FCC regulations over “fleeting expletives” on the airwaves, ruling that the commission’s definition of “indecency” was so vague as to create an unconstitutional “chilling effect” on speech. But the ruling is subject to appeal to the Supreme Court, meaning that the victory for the networks may be fleeting itself.

The FCC could also opt to write more-specific guidelines with regard to profane language, so that broadcasters will not be left to wonder what falls under the FCC’s vague definition of “indecent” and what does not.

Of course, you could make the case that that vagueness—and any resulting, pre-emptive self-censorship—was exactly the point.

Since the FCC began cracking down, sometimes retroactively, on indecency following the 2004 Janet Jackson Super Bowl exposure controversy, its message has essentially been: There is a line regarding indecent content. We can’t codify it exactly, but we know what it is, and we’ll let you know when you’ve crossed it—after the fact, once we’ve fined you.So an f-word might be indecent when it took a network by surprise at an awards ceremony. But then again, it would not be indecent when it came up intentionally in an airing of Saving Private Ryan. But then again it would be indecent when it came up intentionally in a PBS documentary about the blues.

The fog of decency—which applied to much more than f-bombs—created a situation where broadcasters were incentivized to suppress conntent that might not have been ruled indecent, just in case, Which, of course, is just fine with the various advocacy groups who want to protect society from the specter of other people making choices, for themselves and their children, that the groups do not agree with.

Yesterday, the Parents Television Council protested the decision with a statement from its president, Tim Winter: “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. 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.”

Note the “in New York.” This is not the first time the PTC has used the rhetorical device of coastal-elite bashing to protest a decision it didn’t like. The implication, obviously, is that a bunch of liberals in New York should not get to impose their morality on the rest of the country. Apparently it’s people in other parts of America who should be allowed to impose their morality on the rest of the country.

This decision, in any case, will likely have little or no effect on what broadcast networks regularly air. But whether the case goes to a higher court or the FCC sets clearer rules, the result should hopefully be a clearer sense of what the government can regulate. I’m not sure that clarity is what everybody wants here, though.

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