Fox claims that FCC policy ends 'truly live television'

 Says agency scars 1st Amendment

The government's new policy that punishes broadcasters for a slip of the tongue is killing live television because it allows the FCC to look over producers' shoulders and edit content, the Fox network has told a federal appeals court in New York in a key case challenging commission authority over indecent broadcasts.

In its brief filed last week, the network contends that the FCC is doing "serious violence to the First Amendment" with its policy that finds certain words so vile that they automatically are actionable under its indecency rules.

"Under the FCC's new policy, virtually any uses of the words 'fuck' and 'shit' are prohibited, no matter how isolated or fleeting, no matter how inadvertent and no matter whether they occur spontaneously during live programing," Fox attorneys argued. "The result is the end of truly live tele-vision and a gross expansion of the FCC's intrusion in the creative and editorial process. The FCC now second-guesses creative decisions on a show-by-show basis, levying huge fines if the artist or broadcaster has misjudged what the FCC's current commissioners will find offensive."

In particular, the case involved Fox's broadcasts of the 2002 and '03 Billboard Music Awards. During the '02 show, Cher told the audience, "People have been telling me I'm on the way out every year? So fuck 'em." In 2003, Nicole Richie said: "Have you ever tried to get cow shit out of a Prada purse? It's not so fucking simple."

While the commission found that the shows violated the broadcast indecency rules, it didn't issue a fine because the shows predated a policy established in 2004 after U2 frontman Bono said winning a Golden Globe was "really, really fucking brilliant."

The FCC maintains that its policy is necessary to restrain the Hollywood creative community, which would go berserk if not restrained.

"By continuing to argue that it is OK to say the F-word and the S-word on television whenever it wants, Hollywood is demonstrating once again how out of touch it is with the American people," FCC spokesman David Fiske said. "We believe there should be some limits on what can be shown on television when children are likely to be watching."

But the makers of TV programming say that's bull.

"The goal of these artists and other free-expression advocates is not to encourage the broadcast of 'indecent' material but rather to preserve the already inadequate amount of broadcast programming that is creative, original, high-quality, challenging and not indecent," the Center for Creative Voices in Media wrote as an intervenor in the case. "Rather than serve the public interest, the unintended consequences of the commission's inconsistent and confusing indecency decisions is to harm the public interest ? including the interests of America's children ? in vibrant, high-quality television. They threaten free expression, the underpinning of our nation's democracy, requiring one of the most important and powerful sectors of our nation's media to self-censor content that is not indecent."

In its appeal, Fox contends that it, like most of the other networks, isn't demanding that the FCC abdicate its responsibility but rather exercise it with the restraint shown in the past.

"The FCC's abandonment of its restrained-enforcement policy ? which was grounded in (court rulings) and has served the public for three decades ? violates the statute of administrative principles and it does serious violence to the First Amendment."

Since the FCC's decision in the Golden Globes case, the policy has been controversial as broadcasters argue that the commission changed the long-standing policy that held broadcasters blameless for the unplanned utterance of individual words. This case, in the 2nd Circuit Court of Appeals in New York, and another in the 3rd Circuit Court of Appeals in Philadelphia involving CBS' broadcast of the 2004 Super Bowl halftime show in which Janet Jackon's breast was bared, both challenge the government's enforcement of its indecency statutes.

As defined by the FCC, material is indecent if it "in context, depicts or describes sexual or excretory activities or organs in a patently offensive manner as measured by contemporary community standards for the broadcast medium." While obscene speech is not protected by the First Amendment, indecent speech is as the federal courts and the FCC have ruled that such speech can be safely aired from 10 p.m.-6 a.m.

Fox contends that it had no idea that Cher or Richie were going to use those words so the performers should be held responsible.

The network also questions the veracity of the policy's ability to protect children and contends that less intrusive means like the V-chip exist to implement a policy-regulating speech. In speech-regulation cases, the government is required to use the least restrictive means.

It also contends that commission flip-flops on individual shows and violations make it impossible to figure out what exactly the agency means. It pointed out that the commission has said the use of versions of "fuck" and "shit" in Steven Spielberg's "Saving Private Ryan" is not actionable while their use in the Martin Scorsese documentary "The Blues: Godfathers and Sons" is.

"The FCC cannot explain why in some cases the perceived merit of the material ? even material that uses expletives prolifically ? saves some broadcasts from a finding of patent offensiveness but not others," Fox wrote.

The core of Fox's argument, however, lies at the damage the commission can do to the rights reserved to First Amendment speakers.

"Instead of legal standards, the commission's contemporary communities standards for the broadcast medium are determined only by the commission's 'collective experience and knowledge,' " Fox wrote. "This assertion of 'we-know-it-when-we-see-it' ? or worse, 'we-know-it-when-someone-with-political-influence-over-us-says-we-see-it' ? is not a plainly expressed legal standard that allowed for predictive judgments by broadcasters."