Yesterday, the Second Circuit Court of Appeals handed the major TV networks a big victory in their ongoing battle with the FCC over dirty words. Particularly, "fuck" and "shit" (and variants thereof). The specific issue is what to do when a random word of curse is broadcast over the airwaves. For years, since the Pacifica case involving Carlin's seven dirty words, the FCC would not take action against a station that broadcast a stray curse word, particularly in live broadcasts. That all changed once Duhbya and his bunch got into office. The FCC revamped their regs and, overnight, pretty much every use of the word "fuck" or "shit" became per se illegal.
The networks sued, under a multitude of theories, to strike down the new regs. The court sided with the networks, ruling that the FCC screwed up under the Administrate Procedures Act by failing to properly explain and justify such a radical change in the law. Along the way, the court made mincemeat of most of the FCC's rationales for the rule. For example, in shooting down the FCC's per se rule, the court noted:
Similarly, as NBC illustrates in its brief, in recent times even the top leaders of our government have used variants of these expletives in a manner that no reasonable person would believe referenced 'sexual or excretory organs or activities.' See Br. of Intervenor NBC at 31-32 & n.3 (citing President Bush’s remark to British Prime Minister Tony Blair that the United Nations needed to 'get Syria to get Hezbollah to stop doing this shit' and Vice President Cheney’s widely-reported 'Fuck yourself' comment to Senator Patrick Leahy on the floor of the U.S. Senate).That's at page 27 of the opinion. Although the court's holding was based on APA grounds, and the case was remanded to the FCC for further justifications, the court pretty clearly indicated that the FCC rule would fail under the First Amendment as well.
Either way, it's a nice win for those of us who don't think the only suitable TV programming is Mr. Rogers and Little House on the Prairie!
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