Court strikes down FCC indecency rules on fleeting f-bombs

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By Cecilia Kang
Washington Post Staff Writer
Tuesday, July 13, 2010; 1:56 PM

A federal appeals court on Tuesday knocked down the Federal Communications Commission's indecency policy, saying that the agency's guidelines for fleeting expletives and other indecencies in broadcast violate the First Amendment.

The ruling was a win for Fox Television, CBS Broadcasting and ABC, which had petitioned the U.S. Second Circuit Court of Appeals, saying guidelines on "fleeting expletives," implemented by the FCC in 2004, were arbitrary and capricious.

The three-judge panel of the U.S. Second Circuit Court of Appeals in New York said in its opinion that the FCC's policy was "unconstitutionally vague, creating a chilling effect that goes far beyond the fleeting expletives at issue here."

The FCC didn't immediately respond to a request for comment.

The agency's approach to fleeting f-bombs and the like can be credited to U2 singer Bono, who at the Golden Globes Awards in 2003 said upon winning an award: "This is really, really [expletive] brilliant. Really, really, great."

After complaints about Bono's comments, the FCC declared that a single, nonliteral use of an expletive, or a "fleeting expletive," could be "actionably indecent." At the time, indecency in broadcast was the hottest issue at the FCC, with television viewers steaming over Janet Jackson's nipple exposure in the 2004 Super Bowl.

Andrew Jay Schwartzman, policy director of the Media Access Project, said broadcasters will next take their case to the Supreme Court to finally overturn the FCC's policy.

"The score for today's game is First Amendment one, censorship zero," he said.

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