On June 4th, the Second Circuit federal appeals court issued a brilliant opinion
that called into question the FCC's constitutional authority to regulate indecent but otherwise legal speech uttered on broadcast programs. CDT filed an amicus brief in support of the networks in the case of Fox Television v. FCC
in which we argued that technological advancements and convergence have eroded the basis of the commission's authority to regulate broadcast content. We had hoped for a simple footnote acknowledging this point. Instead, we were thrilled that the Court of Appeals indulged in nine pages of discussion of this point, laying the foundation for a new breed of challenges to FCC censorship.
Since 1978, the Supreme Court has permitted the FCC to regulate "indecent" speech uttered over the airwaves. While indecent speech is generally protected by the First Amendment, the Court had found that the broadcast medium is uniquely pervasive in that it extends into the privacy of the home and is easily accessible to children. Thus, in FCC v. Pacifica Foundation
, the Court agreed with the FCC that it had the constitutional authority to punish Pacifica for broadcasting George Carlin's "Filthy Words" monologue in which he repeatedly uttered seven expletives within a 12-minute show that aired at 2:00 in the afternoon.
The Fox case centered on "fleeting expletives" -- that is, swear words that are uttered once, rather than repeatedly. At the 2002 Billboard music awards, Cher responded to her critics with a single expletive. Similar incidents were repeated by other televised speakers at the 2003 Billboard Music awards, in various episodes of NYPD Blue, and on CBS's The Early Show.
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