Indecency Ruling not about First Amendment Rights

Today, broadcasters won a victory over the right to "fleeting" use of profanity. The U.S. Court of Appeals for the 2nd Circuit in New York ruled against fines filed by the Federal Communications Commission against Fox television network. Movie stars, Cher and Nicole Richie, apparently used both the f-word and s-word during the 2002 Billboard Music Awards.

According to an article by The Washington Post, the Court of Appeals said that the fines imposed by the FCC are uncharacteristic of their usual statutory and administrative policies. Moreover, the FCC, according to the court, failed to articulate a reasoned basis for the policy.

Yet, the Post article quotes the FCC Chairman giving a reasoned basis for the policy. He says, "I think the commission had done the right thing in trying to protect families from that kind of language, and I think it's unfortunate that the court in New York has said that this kind of language is appropriate on TV."

Perhaps what the Court of Appeals is trying to articulate in its opinion is a refutation to the FCC Chairman's logic of protecting families and children from "that kind of language." "Fleeting" use of expletives on national television is usually not something planned, but rather an on-the-spot kind of occurrence. Fining networks for something that they could not have foreseen or could not have predicted is not legally enforceable, nor fair.

Indeed, today's decision against the FCC is not one which looks to First Amendment rights of free speech, but rather the practicality of the law itself. In theory goal of the law is good. We want to protect families and children from profanity. Profanity is not essential for communication of important ideas. But in this case, operationalizing that principle into sound legal principle is most likely where the FCC fell short.