The Second Circuit today struck down the FCC's new "fleeting expletives" policy, and in doing so had a lot to say about the FCC's indecency jurisdiction in general. As part of its crackdown in 2003-2004, the FCC started giving harsher treatment to four-letter words, beginning with Bono's unbleeped F-bomb during the January 2003 broadcast of the Golden Globes. In the Golden Globes decision the Commission acknowledged that it was changing the rules by holding that certain words were inherently verboten regardless of context (unlike the Supreme Court, the FCC at least owns up when it's throwing away its precedents). The Second Circuit case dealt with another broadcast to which the new rules were later applied, and here's the money shot:
We find that the FCC's new policy regarding "fleeting expletives" represents a significant departure from positions previously taken by the agency and relied on by the broadcast industry. We further find that the FCC has failed to articulate a reasoned basis for this change in policy. Accordingly, we hold that the FCC's new policy regarding "fleeting expletives" is arbitrary and capricious under the Administrative Procedure Act. The petition for review is therefore granted, the order of the FCC is vacated, and the matter is remanded to the Commission for further proceedings consistent with this opinion. Because we vacate the FCC's order on this ground, we do not reach the other challenges to the FCC's indecency regime raised by petitioners, intervenors, and amici.
Although the court therefore didn't squarely reach the broader challenges, it did discuss the myriad constitutional issues raised by the FCC's indecency policies in some detail. The Progress & Freedom Foundation Blog has this slow-loading post with excerpts and analysis. I haven't read the opinions yet (though they may make for good airplane reading on my trip to Mexico later this week). I may have my own thoughts after I do.
In the meantime, FCC Chairman Kevin Martin and Commissioner Michael J. Copps are cursing mad about the decision, and assure us that the FCC will continue to protect the rights of parents to have the government decide what their children can watch on television.
