A federal appeals court on Tuesday struck down the Bush-era FCC indecency policy, which threatened broadcast television networks with millions of dollars worth of fines for even fleeting, accidental obscenities uttered on the airwaves.
The rule has been in effect since 2003, when U2's Bono cursed during a live broadcast of the Golden Globes. Since then, networks have often been forced to run live events on delay and censor them, rather than risk fines of up to $35 million for each offense.
The three-judge panel of the 2nd U.S. Circuit Court of Appeals in New York did not have the power to strike down the 1978 Supreme Court decision that affirmed the FCC's right to police the airwaves. But it was able to reverse the aggressive stance the agency took under the Bush administration.
The court said that policy on so-called fleeting expletives was "unconstitutionally vague." The court agreed with network executives who complained that the FCC's standards were nearly impossible to figure out, noting that the agency allowed the airing of expletives in broadcasts of "Saving Private Ryan" but not in the PBS miniseries "The Blues."
"Under the current policy, broadcasters must choose between not airing or censoring controversial programs and risking massive fines or possibly even loss of their licenses, and it is not surprising which option they choose," U.S. Circuit Judge Rosemary Pooler wrote in the 3-0 decision. "Indeed, there is ample evidence in the record that the FCC's indecency policy has chilled protected speech."
Some activists now fear this could lead to profanities spewing all over television. But Fox attorney Carter Phillips said that will not be the case. He said FCC restrictions on content between 6am and 10pm -- when children are watching -- remain in place. He noted that even though networks are free to air expletives after 10 p.m., they rarely do.
"I think they'll continue to be sensitive to what their audience wants, but not go crazy in trying to avoid any other expletives at any time," he said.
Phillips said the biggest effect would be on live programming, such as the awards shows that prompted the case. "It will relieve Fox and any other network from expending enormous resources trying to bleep out unexpected language on live broadcasts."
But Timothy Winter, president of the Parents Television Council, said that networks have been pushing the boundaries lately with edgier shows, and now they will be unrestrained.
"What this ruling is saying is that networks are free to no longer have a mute button — and that's unfortunate," Winter said. "We are strongly encouraging the Obama administration and the FCC to appeal this decision."
It's not clear if the FCC will appeal to the Supreme Court.
"We're reviewing the court's decision in light of our commitment to protect children, empower parents, and uphold the First Amendment," FCC Chairman Julius Genachowski said in a one-sentence statement.