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Federal appeals court rules FCC indecency policy unconstitutional

By Hillary Stemple

[JURIST] The US Court of Appeals for the Second Circuit [official website] ruled [opinion, PDF] Tuesday that the Federal Communications Commission (FCC) [official website] indecency policy [text] is unconstitutional. The court held that the FCC's policy is a violation of the First Amendment [text] right to freedom of speech because it is unconstitutionally vague and could have a "chilling effect" on speech. The case was originally filed by Fox Television Stations [corporate website] after the FCC changed its longstanding policy to allow broadcast corporations to be fined based on isolated expletives. Fox argued that the agency's indecency test was unconstitutionally vague because it provided no clear guidelines as to what is covered by the agency's policy, forcing broadcast corporations to severely limit speech in order to avoid potential fines. The court agreed with Fox, finding that:

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. Indeed, there is ample evidence in the record that the FCC's indecency policy has chilled protected speech.

FCC Commissioner Michael Copps [official profile] called Tuesday's ruling "anti-family" [press release, PDF], stating that the court was more concerned with the "chilling effect" the indecency policy has on "indecent programming" rather than the ability of parents to protect their children. Copps urged the government to appeal the decision and called on the FCC 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."

The US Supreme Court [official website; JURIST news archive] remanded the case to the appeals court after ruling [opinion text; JURIST report] in April 2009 that the FCC did not act arbitrarily and capriciously in changing its policy regarding fines for the broadcast of isolated expletives. That ruling overturned a previous decision [JURIST report] by the Second Circuit, which held that the 2004 policy was arbitrary and capricious under the Administrative Procedure Act [text] for failing to articulate a reasoned basis for its change in policy. The Supreme Court declined to address the constitutionality of the FCC policy in its decision and remanded the case to the lower court for further consideration of the constitutional issue.

Full post as published by JURIST - The Paper Chase on July 14, 2010 (boomark / email).