Court Rebuffs F.C.C. on
Fines for Indecency

By STEPHEN LABATON

WASHINGTON, June 4 - If President Bush and Vice President Cheney can blurt out vulgar language, then the government cannot punish broadcast television stations for broadcasting the same words in similarly fleeting contexts.

That, in essence, was the decision on Monday, when a federal appeals panel struck down the government policy that allows stations and networks to be fined if they broadcast shows containing obscene language.

Although the case was primarily concerned with what is known as "fleeting expletives," or blurted obscenities, on television, both network executives and top officials at the Federal Communications Commission said the opinion could gut the ability of the commission to regulate any speech on television or radio.

Kevin J. Martin, the chairman of the F.C.C., said that the agency was now considering whether to seek an appeal before all the judges of the appeals court or to take the matter directly to the Supreme Court.

The decision, by a divided panel of the United States Court of Appeals for the Second Circuit in New York, was a sharp rebuke for the F.C.C. and for the Bush administration. For the four television networks that filed the lawsuit - Fox, CBS, NBC and ABC - it was a major victory in a legal and cultural battle that they are waging with the commission and its supporters.

Under President Bush, the F.C.C. has expanded its indecency rules, taking a much harder line on obscenities uttered on broadcast television and radio. While the judges sent the case back to the commission to rewrite its indecency policy, it said that it was "doubtful" that the agency would be able to "adequately respond to the constitutional and statutory challenges raised by the networks."

Beginning with the F.C.C.'s indecency finding in a case against NBC for a vulgarity uttered by the U2 singer Bono during the Golden Globes awards ceremony in 2003, President Bush's Republican and Democratic appointees to the commission have imposed a tougher policy by punishing any station that broadcast a fleeting expletive. That includes vulgar language blurted out on live shows like the Golden Globes or scripted shows like "NYPD Blue," which was cited in the case.

Reversing decades of a more lenient policy, the commission had found that the mere utterance of certain words implied that sexual or excretory acts were carried out and therefore violated the indecency rules.

But the judges said vulgar words are just as often used out of frustration or excitement, and not to convey any broader obscene meaning. "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."

Adopting an argument made by lawyers for NBC, the judges then cited examples in which Mr. Bush and Mr. Cheney had used the same language that would be penalized under the policy. Mr. Bush was caught on videotape last July using a common vulgarity that the commission finds objectionable in a conversation with Prime Minister Tony Blair of Britain. Three years ago, Mr. Cheney was widely reported to have muttered an angry obscene version of "get lost" to Senator Patrick Leahy on the floor of the United States Senate.

"We find that the F.C.C.'s new policy regarding 'fleeting expletives' fails to provide a reasoned analysis justifying its departure from the agency's established practice," said the panel.

Emily A. Lawrimore, a White House spokeswoman, said Mr. Bush and Mr. Cheney had no comment about the ruling.

Two years ago, Congress increased the potential maximum penalty for each indecency infraction to $325,000, from $32,500. Producers and writers have complained that the prospect of stiff fines had begun to chill their creative efforts.

The case, Fox et al. v. Federal Communications Commission, along with a second case now before a federal appeals court in Philadelphia involving the malfunctioning wardrobe that exposed one of the pop singer Janet Jackson's breasts during the halftime show of the 2004 Super Bowl, have been closely watched by the television industry and its critics for their broad implications for television programming.

excerpted from:
"Court Rebuffs F.C.C. on Fines for Indecency "
By STEPHEN LABATON
© New York Times June 5, 2007