[law.com] The Federal Communications Commission's policy banning even a single "patently offensive" expletive and other profanity on television and radio violates the First Amendment, the 2nd U.S. Circuit Court of Appeals ruled Tuesday.
A three-judge panel said the FCC will have to go back to the drawing board if it wants a profanity policy that will survive scrutiny because the current policy is "unconstitutionally vague" and creates a "chilling effect that goes far beyond the fleeting expletives at issue here."
The ruling came in Fox Television Stations Inc. v. FCC, 06-1760-ag, a case where the FCC was forced to defend a 2004 policy in which the agency increased enforcement efforts against profanity that included swear words uttered at the Billboard Music Awards by Cher in 2002 and Nicole Richie in 2003. The stepped-up enforcement was triggered in part by complaints after the 2003 Golden Globes Awards, where U2 lead singer Bono said while accepting an award, "this is really, really fucking brilliant. Really, really, great."
Judges Pierre N. Leval, Rosemary S. Pooler and Peter W. Hall decided the appeal. Writing for the court, Pooler noted that the increased FCC scrutiny under the Bush administration came after a long "restrained enforcement period," in the wake of the U.S. Supreme Court's decision in FCC v. Pacifica Foundation, 438 U.S. 726 (1978).
2nd Circuit Strikes FCC Profanity Ban as Vague, Overly Broad