FCC B.tch Slapped

The FCC got its a.. kicked yesterday by the Court of Appeals for the 2nd Circuit. The Court said that the FCC's indecency stance - what it calls the "fleeting expletives" rules - were arbitrary and capricious. That's court speak for saying the rules were just plain dumb. The Court even went so far as to say that they doubt the FCC can come up with any regulation that wouldn't violate the Constitution.

Marjorie Heins, formerly of the Free Expression Policy Project, sums up the importance of the case:

The most important part of today's decision in Fox Television Stations v. FCC, however, was lengthy "dicta" (that is, statements not necessary to the result in the case). Warning the FCC not to simply invent additional rationales for its rules against "indecency" and "profanity" in broadcasting, Judges Rosemary Pooler and Peter Hall opined that the agency's entire censorship scheme is likely unconstitutional: its standards are too discretionary; and, given the pervasiveness of the words "fuck" and "shit," and their many variants, in contemporary society, it would not likely be able to show a "compelling state interest" in censoring them.

This is great news for creative types, as the FCC's rules and the recent increase of FCC fines to over $300,000 had serious self-censorship reprecussions. While it affected Fox, NBC and the majors the most, it was also stifling Ken Burns, PBS and others.

Heins' closing paragraphs in her summation are pretty funny:

In a perhaps unintentionally comic footnote, Judge Leval took issue with the FCC's determination that uses of the word "shit" are necessarily indecent. Since, "for children, excrement is a main preoccupation of their early years," he said, "there is surely no thought that children are harmed by hearing references to excrement." While Judge Leval evidently assumed that children would be harmed by hearing references to sex, with regard to excrement, he thought, "the Commission's prohibitions are not justified at all by the risk of harm to children but only by concern for good manners."

Despite these apparently trivial quibbles over whether children are harmed by hearing a word such as "shit," the decision in Fox v. FCC is monumentally important. It fully exposes the irrationality, and the excesses, of the FCC's censorship regime. But it will be a long while yet before we are fully rid of this constitutional anomaly.

The FCC is run by a right-wing zealot from North Carolina named Kenneth Martin, and he said he plans to appeal, but its doubtful he'll get far. Hot damn.