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More TV profanity ahead after court ruling?

NEW YORK (BP)–In a decision that could increase the amount of profanity on television, the U.S. Second Circuit Court of Appeals July 13 struck down the FCC’s broadcast indecency policy, ruling that the standards the commission uses to monitor offensive language are “unconstitutionally vague.”

The case was brought by Fox, ABC and CBS and involved several instances of “fleeting expletives” on live TV. During the 2002 Billboard Music Awards, Cher said the “f-word” and the next year on the same program Nicole Richie used the “s-word” and “f-word.” Both were broadcast on Fox.

The FCC found Fox in violation of the policy but the three-judge panel unanimously struck it down, saying the FCC’s policy did not give broadcasters fair warning of what is and is not allowed. The panel criticized what it called unequal enforcement: While FCC found Fox guilty it allowed a variation of the s-word to be broadcast on CBS’s “The Early Show.” The FCC ruled the CBS broadcast was exempt because it was a “bona fide news interview.”

The Second Circuit also questioned why the FCC declared the s-word on ABC’s “NYPD Blue” to be offensive while not finding other curse words on the same broadcast to be offensive.

The FCC uses a series of criteria in determining whether a program is in violation of the policy, among them whether the content is “patently offensive as measured by contemporary community standards for the broadcast medium.” The FCC argues it needs latitude in its policy because networks are constantly trying to push the envelope.

“By prohibiting all ‘patently offensive’ references to sex, sexual organs, and excretion without giving adequate guidance as to what ‘patently offensive’ means, the FCC effectively chills speech, because broadcasters have no way of knowing what the FCC will find offensive,” the court ruled. “To place any discussion of these vast topics at the broadcaster’s peril has the effect of promoting wide self-censorship of valuable material which should be completely protected under the First Amendment.”

Significantly, though, the judges noted, “We do not suggest that the FCC could not create a constitutional policy. We hold only that the FCC’s current policy fails constitutional scrutiny.”

Richard Land, president of the Southern Baptist Ethics & Religious Liberty Commission, said the decision will only make parenting more difficult.

“In the name of free speech, artistic expression, tolerance and self-determination, contemporary culture has grown gradually but relentlessly more coarse, more brutal, and more outrageous to the point where it has all but lost its power to shock,” Land said. “This federal court of appeals ruling will push society further down this alarming path. While parents have the responsibility to hold the television remote firmly in hand, sudden outbursts of obscene and profane language, as well as so-called equipment malfunctions, often cannot be anticipated.

“I am concerned the court’s decision to pull the rug out from under the FCC’s already minimalistic restrictions on indecent speech will throw open the floodgates to an even greater torrent of filth and perversion on our nation’s airwaves.”

FCC Commissioner Michael J. Copps, one of the five commissioners, labeled the decision “anti-family” and called for the FCC to act soon.

“In light of the uncertainty created by today’s decision,” he said in a statement, “I call on this Commission to move forward immediately to clarify and strengthen its indecency framework to ensure that American parents can protect their children from the indecent and violent images that bombard us more and more each day. These parents — millions of them — are waiting.”

FCC Chairman Julius Genachowski said in a statement that the FCC was reviewing the ruling. Although Copps is wanting an appeal, the decision to appeal is no slam dunk. That’s because the U.S. Supreme Court might go even further than did the Second Circuit and overturn its decision in the 1978 FCC v. Pacifica Foundation case, in which the court ruled that the FCC had the authority to regulate indecent language on the airwaves. That latter case involved comedian George Carlin’s “seven dirty words” routine. Last year Supreme Court Justice Clarence Thomas — who normally sides with the court’s conservative bloc — questioned the “validity” of FCC v. Pacifica. In fact, the Second Circuit justices also indicated they disagreed with Pacifica but said they were bound by precedent.

The conservative Parents Television Council called the Second Circuit’s ruling “unreasonable and unrealistic.”

“The judges claim the FCC’s rules aren’t clear enough about exactly which profanities, under exactly which conditions, are illegal. If this kind of illogical analysis would be applied to other areas, virtually every law on our nation’s books would be overturned for ‘lack of clarity,'” the PTC said in a statement. “The broadcast decency law, which the Supreme Court has repeatedly upheld, is clear: broadcasters must refrain from violating community standards of decency during hours when children are likely to be in the audience.”

The ruling, PTC said, “authorized the broadcast networks to use the ‘f-word’ at any time of day, no matter how many children are in the audience.”

Many parents likely will disagree with some of the logic by the Second Circuit. The justices seemed to argue that FCC monitoring isn’t needed in light of the current TV rating system.

“Technological changes have given parents the ability to decide which programs they will permit their children to watch,” the justices wrote. “Every television, 13 inches or larger, sold in the United States since January 2000 contains a V-chip, which allows parents to block programs based on a standardized rating system.”

But a 2007 Parents Television Council study of 546 hours of primetime broadcast programming found that 67 percent of the time, shows contained offensive programming without the proper content label. A program might, for instance, have sexual content but no “S” label to warn viewers. The networks rate their own shows; the PTC called it a “sham” system.

Said the SBC’s Land, “This ruling should stand as a reminder to parents and others that they cannot rely on the government to do that which is their responsibility. Parents are ultimately culpable for preparing their children to contend with all that is in the culture and that is at odds with biblical principles.”

While the government-mandated V-Chip may not be the best solution, two private companies are introducing new products in the comings weeks that could help families. TVGuardian — which calls itself the “foul language filter” — will release standard definition and high definition models that mute foul language on TV (more info at TVGuardian.com). Another company, MPower, is scheduled to release a product, the MPowerBox, that mutes language and skips offensive scenes. It requires a high-speed Internet connection (more info at MyMPowerBox.com).

The three judges were appointed by President Clinton (Judges Pierre Level and Rosemarry Pooler) and President George W. Bush (Judge Peter Hall).
Michael Foust is an assistant editor of Baptist Press.

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