Supreme Court Says FCC Can Fine Fleeting Expletives... For Now
from the next-up,-first-amendment-question dept
The FCC, under former chair Kevin Martin, suddenly took a much greater interest in fining network TV broadcasters for "fleeting expletives" -- generally live performances in which someone uttered a curse word. Prior to that, the FCC had generally ignored such "fleeting" uses and focused on more significant violations. So, when the FCC suddenly changed its policies and fined some TV networks, they sued, complaining that the change was arbitrary. In 2007, an appeals court agreed, calling the policy arbitrary and capricious. However, the Supreme Court has now reversed that, saying that it's within the FCC's power to make the determination of what policy it follows in regulating broadcast content.However, the case is far from over. So far, this part of the case has only focused on whether or not the rule change was allowed. What hasn't been explored is that, if the rule change is allowed, is that new rule unconstitutional (as a violation of the First Amendment). That's the real question -- so all this stuff about whether the policy was arbitrary and capricious was more like the opening act for the First Amendment headliner that's about to happen. The case has now been sent back to the appeals court, where the free speech implications will be reviewed.
In the meantime, I'm still wondering why the liability should be on the broadcasters in the first place. If Cher or Nicole Ritchie utter a curse word while on live TV, how is that the network's fault? Beyond just the free speech questions, I'm trying to figure out why the liability should be on the networks at all.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: fines, first amendment, fleeting expletives, free speech, supreme court
Companies: fcc, fox
Reader Comments
Subscribe: RSS
View by: Time | Thread
What ... ?
Protecting the children from hearing them I assume to be the reason they were banned.
When I was in grade school, I heard more curse words from other students every day than were in the "shit" epidode of South Park. Furthermore, a teacher got much more respect and was dramatically more effective if they said the occasional "shit" or "damn"
FCC, I think you should fuc^ yourselves to h3ll
[ link to this | view in chronology ]
Re: What ... ?
[ link to this | view in chronology ]
Re: What ... ?
[ link to this | view in chronology ]
Re: Re: What ... ?
[ link to this | view in chronology ]
Re: Re: What ... ?
[ link to this | view in chronology ]
Re: Re: What ... ?
As for bestiality, the animal cannot consent any more than a child can -- they lack the ability to reason that much, so, no, I would be against that.
"Society doesn't need standards of decency. We should decide for ourselves what how we want to live, without regard to the effects it may have on those around us?"
Apparently you wandered in from a different discussion. All we are discussing here is whether networks should be held liable and fined for things said by people not in their employ during live broadcasts. How that morphed into hard core porn and bestiality is a mystery to us all.
If you think that your home-schooled, Darwin-hating, creationist brood will somehow be scarred by hearing naughty words on TV, then turn the TV off. Or sell the TV. No one is forcing you or them to watch any particular television programming or any television at all. It's not the job of the rest of society to raise them. I'm tired of seeing good movies ruined with idiotic overdubs because nut-jobs like you get your panties in a twist every time someone curses.
[ link to this | view in chronology ]
Re: Re: Re: What ... ?
In that case, shouldn't we also prevent animals from having sex with each other? I mean, if they can't consent then allowing them to do so is obviously animal cruelty.
[ link to this | view in chronology ]
Re: Re: What ... ?
[ link to this | view in chronology ]
Re: Re: What ... ?
[ link to this | view in chronology ]
Re: What ... ?
They don't have nearly that much control over the people speaking.
[ link to this | view in chronology ]
Liability
Not certain, just an opinion, but I would guess it's for two reasons:
1. The networks are fully in control of when/what/how they implement broadcasting choices that are vulnerable to the fleeting curses. For instance, carrying a live sports broadcast heightens the liklihood of fleeting curses, so the choice to carry that event w/o a 3 sec. delay or whatever comes w/certain risks/responsibilities.
2. As the peopel with ALL of the access to their broadcasting equipment, if anything is to be done, it would kind of have to be on their end, wouldn't it?
Now I'm not in favor of censorship, but I'm just trying to guess the logic.
[ link to this | view in chronology ]
Umm because networks have the deepest pockets?
Just a thought.
[ link to this | view in chronology ]
America & The Easy Target
All of sudden it is just target the easy group.
Another recent example is the cook on the ship that was highjacked by the real Somali pirates. The cook is now suing his employer because they didn't sufficiently prepare the crew he is saying. They put him in harms way. Its pathetic. They aren't the ones robbing ships or trying to capture things for ransom.
It really is pathetic and just makes us look like idiots. Sad times.
Some of the largest examples of this are all of the major corporations or groups who keep suing other companies or blogs, etc for the actions of users. They made a tool, so they are being sued because of what a user used the tool to do. It really is stupid.
[ link to this | view in chronology ]
Re: America & The Easy Target
[ link to this | view in chronology ]
As samuel jackson would say
[ link to this | view in chronology ]
curse words
Its a good idea and it needs to be enforced
[ link to this | view in chronology ]
Re: curse words
[ link to this | view in chronology ]
Re: curse words
Please tell me that was sarcasm, otherwise....tard.
[ link to this | view in chronology ]
Re: curse words
[ link to this | view in chronology ]
Re: curse words
You were also probably told that Santa Claus, the Easter Bunny, and the Tooth Fairy were real. Cursing isn't wrong. Your parents parents made an error when they told you that it is wrong. Now move on with your life.
What is wrong is interfering with free speech. It's wrong to try to impose your personal, religious, and moral beliefs on others who don't share them.
[ link to this | view in chronology ]
Re: Re: curse words
Yeah, I don't know where some people get the idea that some things are just "wrong".
http://www.nambla.org/
[ link to this | view in chronology ]
Re: Re: curse words
wait are you saying Santa Claus, the Easter Bunny, and the Tooth Fairy aren't real!!!!!!!
[ link to this | view in chronology ]
Re: Re: curse words
I was originally going to call your statement (above) an OXYMORON, but have since discovered that an oxymoron is an "intentional" use of contradiction for rhetorical effect. However, I suspect that you did not intend the contradiction that is in these ideas so easily and widely expressed these days. So... instead, I'll call it a paradox or an irony.
How can you defend that your: "It's wrong to..." thoughts isn't--in fact--not--but your "imposing your personal beliefs on others who don't share them"? Are you not taking a "moral" position yourself?
Perhaps use of the words such as: "values", "mores", and "taboo" might settle better on many folks because using the word "moral" perhaps carries a stronger connotation of mores and taboos that imply that they come from a divine source or otherwise from some religious dogma.
Just as you might say that there are those who would "impose" their religious dogma upon you--others would claim that YOUR religious dogma imposes upon their freedoms. You may choose not to call YOUR views religious. However, it is a form of dogma none-the-less and I see it as coming from another "religion" than what I believe in. It's just dressed in different clothing. Oh, and yes it is an "organized religion". It's very well canned.
[ link to this | view in chronology ]
Re: Re: Re: curse words
[ link to this | view in chronology ]
Re: Re: Re: Re: curse words
Well... that depends upon what you have said and on why I'd need to close my eyes. If I do close my eyes and cover my ears...I guess it might be to protect myself from what I think might hurt me. We might differ in what we think will hurt another person. Does one side of the equation get the upper hand in saying what is hurtful and what is not? (Reminds me of when my daughter came crying with tears: "He pinched me!" My son came in and pinched his own arm and said: "See, it doesn't hurt!")
Should I ask you if you would please give me enough warning so that I can close my eyes before you throw sand at me. Yes I do have the right to close my eyes. And if you keep throwing sand in them, I suppose that I will assert my rights by keeping you away from the sandbox while you are at my house. :-)
"My rights end where yours begin". Just like what we all have had to learn (hopefully) while playing in the sandbox when growing up. Give and take and sharing. Freedom of speech is very important. But it seems that we need to consider if it might be a different issue when we are broadcasting potentially to every household over the air waves that all of us supposedly own.
I think that Boy Lover (above) said it much better than all of my ramblings here: ...
"Yeah, I don't know where some people get the idea that some things are just "wrong"."
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: curse words
Actually quite to opposite, look at my latest post. We have a lower amount of teen pregnancy, drug users because we are open about it. Not because we remove a word while everyone knows what it said.
[ link to this | view in chronology ]
Re: curse words
Seems to me, if someone says "get f*cked" to me, they're wishing me well, good luck, as it were.... But that's just my POV. ;)
[ link to this | view in chronology ]
Re: curse words
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
Huh? I don't think any of the involved parties is claiming that obscenity is involved, so why would obscenity laws be "brought into play"? That just doesn't make any sense.
[ link to this | view in chronology ]
You want to oil him down? This is exactly the type of content that shouldn't be on PUBLIC TV! (LOL)
Now for some actual debate:
For you free speech fanatics BTW (which I am in a good sense- I love the 1st Amendment, and the following 9 and the others as well), it is a shared airwave.
So sorry. Some people have generally accepted standards.
We all end up swearing, but for general presentation, and polite speech, it is discourgaged. Children watch TV generally in the afternoon, and generally tend to need more sleep, hence go to bed earlier, than adults. It's not facist censorship to set some guidelines if you are going to allow swearing. I think the editing is a little silly also at times, in movies for TV, but there are worse things.
DEAL WITH IT.
[ link to this | view in chronology ]
Re:
Also, you "cursing is bad" people need to realize that it's not the word you need to worry about, it's the idea behind the word.
For example, if, instead of saying "fuck" I started to say "flip", and it caught on enough that everyone said "You should have seen the girl I flipped last night." or "Go flip yourself, you flipping flipper!" would you advocate to censor the word "flip" from your children?
The word only has power because of the ideas behind it. Go ahead and start your crusade against naughty thoughts. I'll wait.
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Ideas
> mean then, yes, I would.
So it's not the word, it's the idea you object to?
If so, then why aren't you advocating that all mention of sex be banned from TV, regardless of which words are used to refer to it?
[ link to this | view in chronology ]
Re: Re: Re: Re: Ideas
For children, yes. And by that token I would object to words that mean the same thing in other languages as well.
If so, then why aren't you advocating that all mention of sex be banned from TV, regardless of which words are used to refer to it?
I would probably object to most all graphic descriptions of sexual activity, verbal or otherwise, on broadcast television where children are likely to encounter them.
I know some would disagree with me. I've even known of parents who purposely taught their young children all manner of foul language because they thought it was "cute", and then encouraged them to run around in the grocery store shouting it out at people because it was "funny". I disagree with such behavior.
[ link to this | view in chronology ]
#9
[ link to this | view in chronology ]
Whose Fault
Well, it's not generally illegal for Cher or Nicole Ritchie to curse. It is, however, illegal for television stations to broadcast it.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
V-Chip
[ link to this | view in chronology ]
That must be the reason why we in the Netherlands have one of the lowest teen pregnancy's in the world and even at 12:00 it's totally normal to see an ass on TV, while the U.S. has one of the highest. We are open about our sexuality, even on TV. Marijuana is allowed, and talked about on tv, still the percentage of drug users is lower.
Yes it actually is! Come to the Netherlands and watch it. We openly talk about sex. Censorship won't help shit, it will only make things worse. This is just what I wanted to say.
Example of a certain Dutch TV-show on public TV. 'Spuiten en Slikken' ,means as much as 'inject/squirt and swallow', it's about sex & drugs.
Video of last episode (legal): http://player.omroep.nl/?aflID=9388826
Just had to say this about censorship, if I watch TV from other country's that is one of the things I hate.
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re: Re:
So that means that such programming has no effect on children. So there really is no justification for FCC "decency" regulation "for the children", is there?
[ link to this | view in chronology ]
[ link to this | view in chronology ]
I Have Heard this Before!!
[ link to this | view in chronology ]
I can say dang but not damn? crude not shit? arse not ass? why? seems silly to me.
[ link to this | view in chronology ]
why broadcasters are responsible
The reason the broadcasters are liable is because when the Comm Act of 1934 was passed, requiring broadcasters who get a monopoly on a piece of the spectrum to act in the Public Interest Convenience and Necessity (PICON), their 1st Amendment rights were thereby limited. Print media has a 1st amendment right to print indecent material, but broadcasting was assumed to be an invasive or pervasive medium, less controllable by receivers than print, and so had to abide by different rules in order to protect audiences from inadvertent exposure to damaging content.
Tape delays are the usual solution to the problem of spontaneous expletives--most network feeds use this since it became clear during the Janet Jackson nipple exposure incident that the FCC would be punishing broadcasters for fleeting indecency (as the FCC defined it).
By the way, cable networks and operators have full 1st amendment rights (because viewers pay and request the service), and so whatever beeping of expletives you see on cable networks is solely a function of the networks' decision to cater to its perception of its audience (among whom may be some offended by expletives), not because of any FCC regulations.
[ link to this | view in chronology ]
Re: why broadcasters are responsible
Then why doesn't that apply to satellite broadcasters?
By the way, cable networks and operators have full 1st amendment rights (because viewers pay and request the service)
Don't television viewers do the same when they tune to a station?
[ link to this | view in chronology ]
Re: Re: why broadcasters are responsible
[ link to this | view in chronology ]