We all watch television, some of us more than others. Every once in a while we hear or see something on a television show that raises our eyebrows because of the language that is used or the graphics that are shown. And of course, the time of the day or night that we see or hear these variations from the norm also play into our thought process.
Most of you do not know that the standards of what are and are not permissible over standard broadcast channels are controlled and dictated by the Federal Communications Commission (FCC). When broadcasters violate these standards the FCC can move to fine the broadcaster and ultimately to revoke or fail to renew their broadcast license. Broadcasters, on the other hand, can fight back through the court system. Through these court decisions, and the FCC guidelines, broadcasters try to guide themselves so that they do not run afoul of the law.
In 1978, the United States Supreme Court ruled in the case of FCC v. Pacifica Foundation, that the FCC was in its purview to regulate and fine the use of George Carlin’s “Seven Dirty Words” as they had become to be known. For over twenty years after that decision, broadcasters were on notice that these words needed to be filtered from their broadcasts and could not be uttered without facing the possibility of FCC sanction. That is why those seven dirty words did not find their way to your ears while listening to television or radio. The Pacifica decision dealt with the filthy monologue as it was termed, but left open whether an occasional expletive or accidental utterance would also be actionable by the FCC.
After Pacifica the FCC let it be known that it did not believe that it was totally bound by the exact wording of the Supreme Court’s decision, but rather interpreted the decision as giving it authority over indecent broadcasts rather than limiting its regulation to just indecent words or pictures. By 2001, the FCC in a policy statement stated “whether the material dwells on or repeats at length” as determining factors of what would be patently offensive material.
In 2004, the FCC issued what has become to be known as “the Golden Globes Order”. This Order announced to broadcasters that “fleeting expletives would now be actionable”. This was brought on by the performer “Bono’s” acceptance speech in which he uttered “fucking brilliant”. The FCC determined that words such as that, even if uttered for a short period of time were sanctionable. The Golden Globes decision came on the heels of the FCC’s 2001 policy statement in which the commission stated “for material to be indecent it must depict sexual or excretory organs or activities and be patently offensive as measured by contemporary community standards for the broadcast medium”. The commission then set up factors in making that determination.
In 2002, Cher at the Billboard Music Awards upon accepting an award stated “so fuck’em” and Nicole Richie, while presenting an award in 2003 used the terms “cow shit” and “fucking simple”. Also in 2003, ABC had the audacity to show a nude female buttocks for approximately seven seconds, along with a momentary side view of her breast.
The FCC applying their 2001 policy statement, along with the spirit of their later 2004 Golden Globes pronouncement, decided to sanction both Fox Television and ABC for these egregious violations. The case went through the court system all the way up to the United States Supreme Court and then sent back to the Second Circuit Court of Appeals for clarifications. After the Second Circuit Court of Appeals ruled for the second time in favor of the broadcasters, again the case went back to the United States Supreme Court.
On June 21, 2012, the United States Supreme Court ruled in the case of FCC v. Fox Television Stations, Inc., on these matters. We who are champions of the First Amendment were hoping for the knockout punch. A ruling by the United States Supreme Court that fleeting expletives and mere nudity, certainly within the contexts of the program would be held not to be indecent and therefore not actionable by the FCC. Some of us, of course, were hoping for an even more far reaching pronouncement that words and nudity under any circumstance could not be actionable by the FCC as indecent.
The United States Supreme Court instead of ruling that the First Amendment protected this speech and visuals, sidestepped the issue. Instead of ruling on First Amendment grounds and setting up a clear test as to what is indecent or not under television and radio broadcasts, instead ruled that since the broadcast occurred in 2003 and prior to the Golden Globes pronouncement by the FCC that the broadcast in question had to be evaluated under the 2001 policy statement.
The Supreme Court then went on to state that the policy statement was too vague and did not give sufficient guidance to the broadcasters as to what was or was not permitted. Therefore, due process dictated that the broadcasters could not be held accountable for violating an FCC regulation that was too nebulas to enforce.
The ruling by the United States Supreme Court therefore, in essence, allows the previous ruling on the Pacifica case to still be the law of the land. It keeps muddled whether “fleeting expletives” are actionable or whether that brief glimpse of a buttocks violates indecency standards. What the Supreme Court did was to give very little guidance and therefore broadcasters still are at the whim of nebulas regulations by the FCC and in the future most likely will have to challenge those nebulas regulations when the FCC decides to employ them again.
On another note, many of you may be aware of the lawsuit filed against the City of North Bay Village dealing with an attempt to open up an adult gentlemen’s club in the town. The Federal lawsuit filed before Judge Ungaro in the Southern District of Florida was dismissed by the Judge as she determined that the Plaintiff, Isle of Dreams” had no standing to contest the constitutionality of the conditional use permit needed to operate such an establishment in the City of North Bay Village.
Benjamin & Aaronson on behalf of Isle of Dreams have filed their Notice of Appeal with the Eleventh Circuit Court of Appeals as to Judge Ungaro’s ruling. Benjamin & Aaronson believe that Judge Ungaro’s decision is a misapplication of the law and look forward to proving the same before the Eleventh Circuit Court of Appeals.