The current indecency enforcement effort stems from a 1978 high court decision that upheld sanctions against stations that broadcast comedian George Carlin’s famous routine on the seven dirty words you can’t say on the public air waves.
For years, the FCC enforced a policy against the systematic and repeated use of offensive words, most of which had been identified – effectively and repeatedly – by Mr. Carlin.
In 2001, the FCC changed course. It began enforcing a prohibition not just on systematic indecency but also on the use of fleeting expletives – dirty words blurted out during a prime time program. Several celebrities during music award programs on Fox used the “F-word,” and the “S-word.” In addition, an episode of ABC’s NYPD Blue featured a scene revealing a woman’s bare buttocks.
The FCC declared the programs “indecent.”
The broadcasters fought back with a lawsuit, claiming the FCC’s censorship was ill-defined and difficult to decipher. The Second US Circuit Court of Appeals in New York agreed and struck down the FCC’s policy as unconstitutionally vague.
The government defends the FCC policy, noting that broadcasters had been given fair notice.
Legal analysts are watching the case to see if the court uses it to affirm traditional indecency standards or instead requires a more permissive policy in light of widespread use of the Internet and cable television.
“I think the thing that will interest the court most is just the prospect of chilling” and whether the FCC policy provides the requisite degree of clarity, John Elwood, an appellate specialist and former law clerk to Justice Anthony Kennedy, told a recent briefing at the National Chamber Litigation Center.