Last week, an appeals court in New York overturned the federal ban on broadcast indecency, and a judge in Washington, D.C., dismissed obscenity charges against porn impresario John "Buttman" Stagliano. The two cases show that prohibiting vaguely defined categories of speech undermines the rule of law as well as freedom of expression.
The policy rejected by the U.S. Court of Appeals for the 2nd Circuit defined broadcast indecency as "language or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory organs or activities." Broadcasters who aired such material between 6 a.m. and 10 p.m. were subject to multimillion-dollar fines.
But as the appeals court noted, the guidelines for avoiding those fines were hopelessly muddled. The Federal Communications Commission has declared, for example, that unscripted, fleeting expletives uttered by celebrities during live award shows are indecent, while constant cursing by fictional soldiers in a war movie, if "artistically necessary," is not. The FCC said occasional expletives in a documentary about blues musicians did not deserve the same artistic license because the interview subjects could have expressed themselves differently.
The FCC said "bullsh--ter" was "shocking and gratuitous" because it was uttered "during a morning television interview," then changed its mind because the context was "a bona fide news interview."
At the same time, it warned "there is no outright news exemption from our indecency rules." The commission said "bulls--t" was unacceptable on a police drama because it was "vulgar, graphic and explicit," but "dickhead" was OK because it was "not sufficiently vulgar, explicit or graphic" to be indecent.
The 2nd Circuit cited evidence that the FCC's arbitrary application of its vague, subjective standards has deterred broadcasters from airing constitutionally protected material, including political debates, live news feeds, novel readings and award-winning shows dealing with sexual topics. "By prohibiting all 'patently offensive' references to sex, sexual organs and excretion without giving adequate guidance as to what 'patently offensive' means," the court concluded, "the FCC effectively chills speech, because broadcasters have no way of knowing what the FCC will find offensive."
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