Wednesday, July 14, 2010
US court throws out strict television profanity rules
Judges ruled that banning the fleeting use of expletives ran contrary to the First Amendment of the US Constitution which protects free speech.
They also said the tough indecency policy pursued by the broadcast regulator, the Federal Communications Commission, was "unconstitutionally vague" and could have the "chilling effect" of promoting wide self-censorship by broadcasters.
The ruling means an end to regulations which have exposed broadcasters to potentially huge fines for incidents such as Janet Jackson's wardrobe malfunction and celebrities swearing at awards ceremonies
The ruling by the US Court of Appeals in New York was a major victory for television networks, including Fox, NBC and CBS, but was condemned by parental groups who said it would open the door to widespread use of profanity at any time of day.
Obama's administration will now face a test over whether it challenges the ruling, which reverses a tightening of profanity laws under President George W Bush.
The FCC is expected to take the case to the US Supreme Court to clarify the issues of constitutional free speech and what constitutes obscenity in the modern world.
The legal case arose after Bono, singer for the rock band U2, used what the regulator referred to as an "F-word expletive" during a live broadcast of the 2003 Golden Globe Awards.
In the following year the FCC declared, for the first time, that a single, unbleeped use of an expletive, could be "actionably indecent" and lead to a fine. The ban applied on network television between 6am and 10pm.
The crackdown was also spurred by Miss Jackson's notorious appearance in a half time show at the Super Bowl in 2004. During what was described as a "wardrobe malfunction" her breast was exposed to millions of viewers, leading to a flood of complaints.
Congress subsequently signed a law increasing fines for broadcasters of indecent material by 10 times to $325,000 (£210,000) per episode.
The FCC also said that profanity referring to sex or excrement was "always" indecent and cited a series of cases as violating the ban.
Those included Cher, the singer, swearing during a broadcast of the Billboard Music Awards. Another case involved an awards show where reality television star Nicole Richie said: "Have you ever tried to get cow ---- out of a Prada purse? It's not so ------- simple." Broadcasters claimed the rules went too far and some had even withdrawn the Second World War film Saving Private Ryan, and a documentary on the September 11, 2001, terrorist attacks, from prime time slots because they included swear words.
The case, known as Fox Television Stations Inc v FCC, has already been in the courts for four years.
In a 32-page judgment the court said there was confusion for broadcasters with some phrases considered indecent while others were not.
A swear word describing "bull excrement" in the drama "NYPD Blue" was said to be offensive while the expression "kiss my ---" was not, it said.
The panel of three appeal judges, led by Judge Rosemary Pooler, ruled: "We now hold that the FCC's policy violates the First Amendment because it is unconstitutionally vague, creating a chilling effect that goes far beyond the fleeting expletives at issue here."
Tim Winter, president of the Parents television Council, said: "For parents and families around the country, this ruling is nothing less than a slap in their face.
"They have authorised the broadcast networks' unbridled use of the 'F-word' at any time of the day, even in front of children."
A Fox spokesman said the broadcaster was extremely pleased with the decision but would continue to strive to eliminate expletives from live broadcasts.
He said it must be accepted that there would be "unfortunate isolated instances" where inappropriate language "slips through."