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Second Circuit Strikes Down FCC Indecency Policy as Unconstitutional : Fleeting Expletives are Protected Speech

By Andis Kaulins

At Second Circuit Flushes FCC Indecency Policy the CommLawBlog of Fletcher, Heald & Hildreth, P.L.C. discusses the Second Circuit decision in Fox Television Stations, Inc. v. FCC, which struck down the FCC indecency policy as being unconstitutionally vague and creating a "chilling effect" on constitutionally protected free speech, finding that fleeting expletives are protected. As written by the Court:

"LEVAL, POOLER, and HALL, Circuit Judges....

POOLER, Circuit Judge:

This petition for review comes before us on remand from the Supreme Court. Previously
we held, with Judge Leval dissenting, that the indecency policy of the Federal Communications
Commission (?FCC? or ?Commission?) was arbitrary and capricious under the Administrative
Procedure Act (?APA?), 5 U.S.C. § 706(2)(A). See Fox Television Stations, Inc. v. FCC, 489
F.3d 444, 462 (2d Cir. 2007). The Supreme Court reversed, upholding the policy under the APA
and remanding for consideration of petitioners? constitutional arguments. See Fox Television
Stations, Inc. v. FCC, 129 S. Ct. 1800, 1819 (2009) (Scalia, J.). We now hold that the FCC?s
policy violates the First Amendment because it is unconstitutionally vague, creating a chilling
effect that goes far beyond the fleeting expletives at issue here. Thus, we grant the petition for review and vacate the FCC?s order and the indecency policy underlying it."

We agree with the Court's decision as being right on the Constitutional Law issue but we do hope that the case does not help to contribute to the general decline in the quality of speech on public and private media, where expletives too often seem to replace thought and intelligent language expressiveness and where the intellectual level of language used is sometimes what we would simply call language garbage. Unfortunately, such language garbage is also speech protected by the 1st Amendment.

Full post as published by LawPundit on July 16, 2010 (boomark / email).