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Analysis: Fox Broadcasting's Indecency Case Has Close Parallels To Adult's Obscenity Problems

Analysis: Fox Broadcasting's Indecency Case Has Close Parallels To Adult's Obscenity Problems

On Wednesday, the Second Circuit U.S. Court of Appeals heard argument in the broadcast indecency case of Fox Broadcasting v. Federal Communications Commission (FCC) – and if one can judge by the questions asked by the three-judge panel (and sadly, one too often can't), it should be a slam-dunk for Fox when the decision is handed down several weeks from now.

At issue were two off-the-cuff utterances by performers at the 2002 and 2003 Billboard Music Awards show; one in which Cher responded to critics with a curt, "Fuck 'em," and another where Nicole Richie, describing her role in the sitcom The Simple Life, complained, "Does anybody know how fucking hard it is to get cowshit out of a Prada purse?"

But central to the entire question before the court is the FCC's stated position that only certain kinds of utterances in certain contexts will draw the FCC's ire (and fines, which were recently increased to $325,000 per violation), which led Judge Peter Hall to ask the FCC's attorney Eric Miller, "[If] Fox, wanting to air, so its viewers are reminded what's at issue here, pulls up the clips from the Billboard Music Awards and shows those two instances of Cher and Nicole Richie as background or in conjunction with reporting on what's happening in this courtroom here today," would that be indecent?

Miller agreed that it wouldn't .. and therein lay the problem.

However, it took more than half an hour to get to that point, much of which time was spent questioning Fox's attorney Carter Phillips, who raised the important question of why this case had reached the court, while another earlier case, involving musician Bono's exclamation "Fucking brilliant" at the 2003 Golden Globe awards, was still in front of the FCC's commissioners with no decision on its "indecency" having yet been reached. However, the commission had issued what it termed the "Golden Globe Order," in which the commission announced, "We now depart from... any similar cases." That meant that whatever the FCC finally decided regarding the Bono outburst, all cases thereafter involving "fleeting expletives" would be dealt with harshly.

"As of that point in time [the Golden Globe order]," Phillips noted to the panel, "we have 30 years of unbroken precedent where the commission recognizes that the use of these expletives is offensive to some but has never declared that the use of these expletives is a basis for any kind of a sanction."

But would it make a difference, asked presiding Judge Rosemary Pooler, if the "indecent" words had been contained in a script and aired deliberately?

"I think if it's scripted and intended to be put forward on the air, there's still the fundamental question of whether or not the particular words can be declared to be indecent," Phillips responded.

"Or if they're integral to the work, then they may be found not indecent, like Saving Private Ryan?" Pooler inquired, referring to the Steven Spielberg WWII drama that recreated the salty language of real GI's.

"There's no question that the commission has a basic approach that says that we will presume that the use of these particular expletives, fuck and shit, these specific words, is presumptively indecent," Phillips answered, "and then you have the opportunity to come in and try to rebut that presumption by saying that there's some contextual basis for supporting it. But obviously the creation of the presumption in the first instance is a complete departure from any notion of context, because it's saying these are words that are categorically barred, which is something the commission has never said in 30 years of enforcement of indecency."

The panel members, however, seemed willing to delve deeply into the issue of indecency, and asked many probing questions of both attorneys, some dealing with the very basis of the FCC's policies regarding "indecent" speech.

In particular, Judge Pooler wanted to know what the FCC could have done to convince Phillips' client that sanctioning indecent speech was a rational policy.

"What would they have to do to convince you that it was a reasonable analysis?" Pooler asked. "Did they tell you that children were harmed, if such studies exist?

Phillips agreed that harm could be the basis of the FCC's analysis, but added, "I think it would be difficult to demonstrate that exposure to a single word could remotely injure children.

"Is it something in your view that could simply be plugged up by setting forth more extensive analysis," continued Judge Pierre Leval, "or is it your position that the position taken by the commission is simply unjustifiable so that there can't be any reasonable analysis of something that is unjustifiable?

"Our alternative argument is that this is First Amendment-protected activity and that you need a compelling state interest and narrow tailoring," responded Phillips, adding later, "At the end of the day ... do I think that you can regulate this kind of speech consistent with the First Amendment? I don't think so, but if the Court wishes to give the commission an opportunity to undertake to make a kind of showing, if there's a bubble child out there and the child will be hugely disturbed by exposure to a single word, to me, that is utterly implausible."

However, Phillips kept returning to the essential hypocrisy of the FCC's position.

"Their argument is that you have to free children from any exposure to these particular words," Phillips observed, "and then they proceed in the same breath to recognize that exposure to these particular words is routinely permitted at particular times if it can be justified on particular grounds... I think, at the end of the day, all you're doing is creating a regime that says that this is better speech than this is. I can't imagine a regime that is more antithetical to First Amendment values."

"So the bottom line of your argument here is that the FCC cannot regulate the fleeting expletive?" Judge Hall asked.

"I think that's right," Phillips agreed, "although I don't have to sustain that argument. All I have to demonstrate is that they haven't done it to date."

Judge Pooler also inquired as to how the networks had been harmed by the FCC's revamping of its attitude toward "fleeting expletives."

"The clear evidence of that is the 9/11 program, which is a Peabody Award program that CBS aired twice," Phillips answered, "and when they were going to air it on the fifth anniversary of 9/11, 10 percent of the United States audience was precluded from seeing that show because the affiliates panicked because of the use of expletives post-Golden Globe."

When Miller's turn came at the podium, he attempted to tell the court that its jurisdiction was essentially limited to whether the FCC had the power to sanction Fox because of its failure to prevent the Cher and Richie expletives from going out over the air.

"All that is before the court here is two judications," Miller stated. "In both of these cases, Fox Television broadcast the F word on prime time television. In neither case does Fox make any effort to defend or to justify the use of that language, so the only issue here is that raised by the concededly gratuitous use of the F word on an entertainment award show when children are in the audience."

The panel, however, was having none of that, and Judge Hall was particularly vehement in attempting to get the FCC's hypocritical stance clearly on the record. The following dialog ensued:

Judge Hall: "Taking your point of view, which I'm not sure I agree with, why isn't this a sort of sword of Damocles hanging over the heads of every broadcast station around?"

Miller: "Because the only thing that the commission has decided in this case is that the –"

Judge Hall: "That in those circumstances; the use of those words which Mr. [Phillips] has recited for us several times is inappropriate and is subject to fine? Then let me give you a hypothetical, Mr. Miller. This is being fed out by cable here, and presumably the broadcast media can pick it up. Let's say they pick up a portion of Mr. Phillips' argument, and ... the words 'fuck' and 'shit' are actually broadcast over 6 o'clock news tonight. Is that going to be the subject of FCC hand-slapping?"

Miller: "I think plainly not."

Judge Hall: "Because ...?"

Miller: "For the reasons stated in this very order with respect to the Early Show case. The commission has emphasized that it will exercise great restraint when it comes to news programs."

Judge Hall: "Let me expand the hypothetical, to where Fox wanted to air, so its viewers are reminded of exactly what's at issue here – pulls up the clips from the Billboard Music Awards and shows those two instances of Cher and Nicole Richie as background or in conjunction with reporting on what's happening in this courtroom here today?"

Miller: "To be indecent, the use of the language has to be patently offensive, which under the commission's analysis requires that it be presented –"

Judge Hall: "So how is a rebroadcast of the clip in the context of news any less offensive than it is in the Billboard Awards?"

Miller: "Because in that context, as the commission explained in the Early Show order, it's not being presented to pander or titillate or for shock value; it's being presented to inform viewers what the case is about."

Continuing that line of questioning, Judge Pooler questioned Miller about the "Early Show case," where the FCC had decided that a similar expletive, uttered by a former cast member of the Survivor TV show in describing his fellow "survivors," fell under a "news" exception.

Judge Pooler: "The exception that the FCC found for news was someone who had been made to exit from that show, talking about people who were still left on that show, and you call that news?"

Miller: "Yes."

Judge Pooler: "What wouldn't be news under that standard?"

Miller: "The commission is not in the business of second-guessing the journalistic and editorial judgments of broadcasters."

Judge Pooler: "So why can't they call everything news? You just said you can't slap 'news' on just anything, and now you're saying you're not in the habit of second-guessing. Which is it?"

Miller: "The test that the commission articulated in the Early Show order is that we said we would defer to CBS's plausible characterization as a news show."

Judge Pooler: "Did you mean to suggest by the use of the word 'plausible' that it was a stretch?"

Miller: "Not necessarily. That word is just in there to emphasize that it is indeed a very broad exception, but questions of the breadth of the news exception are not implicated here, where there is concededly no journalistic theory on which – "

Judge Leval: "Are not important music awards somehow journalism?"

Miller: "One could perhaps argue that, but Fox does not make that argument; it didn't say that before the commission; it hasn't said that in this court. At every stage of this case, it has made no effort to defend the language that was used by Ms. Richie or by Cher the year before."

Judge Leval: "Are you suggesting, if they had, that it might be plausible?"

Miller: "It would depend on exactly what they said, but that would be something the commission would have to take seriously. It's significant, I think, that the commission has never found a broadcast to be indecent on the basis of an isolated expletive in the face of some claim that the use of that language is necessary for any journalistic or artistic purpose."

Judge Pooler: "Are you suggesting now that this could save the FCC indecency policy? Are you telling the networks, who I think are all here today, to just make some kind of cockamamie claim and they'll survive?"

Miller: "It's not necessary for this court to decide exactly what sort of justification would be necessary and how that factors into the analysis of whether the use of the language is pandering or shocking or titillating."

In other words, rather than attempt to explain the FCC's hypocritical position that a child hearing the words "fuck" or "shit" on an entertainment show is harmed, but that same child hearing those same words on a news broadcast isn't, Miller was attempting to tell the court that questioning such hypocrisy wasn't something the Second Circuit had the power to consider.

Eventually, however, the FCC's attorney was forced to admit that the FCC uses a test similar to the test for obscenity set forth in Miller v. California.

Judge Leval: "What is the route by which the FCC might arrive at those two conclusions? ... It's not the FCC's evaluation of worth?"

Miller: "No."

Judge Leval: "It's not as in Miller v. California: 'We think this has or doesn't have artistic value'? It's that, 'We think the community doesn't find it offensive in the same way when they're seeing it exhibited in what is legitimately a news broadcast; what was the broadcast that gave rise to this big fuss?'"

Miller: "That's exactly right, and analytically the way the commission deals with that is that patent offensiveness under community standards is evaluated with a three-part test and one of the factors in that test is, was the material pandering or titillating or presented for its shock value? And if it's part of a news broadcast or if it's like the language in Saving Private Ryan, it's not being presented to pander or titillate; it's being –"

Judge Pooler: "Yet the same words spoken by the same person, you can find that the context changes the shock value?"

Miller: "That's right, and that's exactly what Pacifica says, that the indecency regulation is conducted under a nuisance rationale and under that rationale, context is all-important."

The reference here is to the 1978 case of FCC v. Pacifica Foundation, more commonly known as the "seven dirty words" case, where Pacifica radio stations broadcast a George Carlin monologue, after which the FCC levied fines against the network on the basis that the monologue was indecent and therefore couldn't be broadcast during hours when children were likely to be listening.

But Judge Pooler wanted to return to the question of utterances during entertainment shows versus utterances during news shows.

"You understand, the petitioner and intervenors and most of the amici have a hard time understanding those boundaries," Judge Pooler observed, "because they are not objective; they're subjective, they claim, so you just said that what Cher said on the Billboard Awards show merited liability but if it was played tonight on the news as informational, it wouldn't merit liability, and this seems to be a scheme that depends on what you think instead of having ... objective criteria that the petitioners can use in formulating their broadcast day."

What the judge was calling to Miller's attention was the concept that under American jurisprudence, we have a "government of laws, not of men," and that offenses are decided based on general legal principles, not on the whims of individual magistrates, who may find an act illegal one day and legal the next.

But Miller once again attempted to dodge that bullet by claiming that the court lacked jurisdiction to consider that issue.

"It violated Section 1464, and the indecency regulation," Miller responded. "But to return to your question, whatever vagueness or vagueness argument there might be at the periphery of the indecency standard, those questions are not presented in this case because all that is at issue here is the concededly gratuitous use of the F word in an entertainment program."

Shortly thereafter, Judge Pooler got into an area that should be of particular interest to those involved in the adult entertainment industry, since the argument laid out by Judge Pooler could just as easily be applied in obscenity cases:

Judge Pooler: "Counsel, the FCC views their role as only policing sexual and excretory activities and organs, is that correct?"

Miller: "That's the definition."

Judge Pooler: "And I'm asking you this just because there were no studies, as we've said – do you believe there are necessary studies of the harm that comes to children from hearing about sexual or excretory organs or activities? There were no studies attached; you think they're unnecessary? I'm just stating a fact."

Miller: "That's right; there were no studies before the court in Pacifica."

Judge Pooler: "Right. So I ask you though, that there are so many studies that are available – some of them, I'm sure, valid academic studies – about the effect of violence on children. How come the FCC hasn't seen that when they're policing the airwaves and worrying about children; how come they haven't paid any attention to that at all?"

Miller: "I believe there is a pending study of the issue of violence, but you're right: So far there hasn't been any rule-making or judicative action that I'm aware of."

Judge Pooler: "Unless the violence was in the context of sexual or excretory organs or activities; then it would get your interest?"

Miller: "The definition of indecency that was before the court in Pacifica and what the court upheld is one that is based on descriptions or depictions of the sexual or excretory organs or activities."

In other words, "We do it this way because we've always done it this way; the rightness or wrongness of the issue no longer matters."

But Judge Pooler pressed the issue even further:

Judge Pooler: "Don't you think a parent who allows a child to have an unregulated television in the bedroom without the parent there to monitor is accepting the risk of fleeting expletives, since for all the years between Pacifica and Golden Globes, that risk was present and is still present today, depending on context? What if that child watches the news tonight without a parent there to grab the television?"

Miller: "I think, Your Honor, that that is essentially an argument against any regulation of broadcast decency on the theory that parents can simply not allow their children to watch television."

Judge Pooler: "It's not an argument against any regulation; it's just that I find it disingenuous to point to the fact that parents let children have televisions in their bedrooms that are unmonitored as a reason for the FCC to go galloping to the rescue. I think parents know what they're doing when they let a child have a television in the bedroom and they're not there to monitor what's on that television. Ditto with computers."

Miller: "That may be the case, but the point of that factual finding to the FCC's analysis is simply that the rationale that Pacifica identified, that broadcasting is uniquely pervasive and uniquely accessible to children, remained true."

Judge Pooler: "And I'm asking you, don't parents know about the unique pervasiveness? That's really what I'm asking. You want to substitute – you want to protect those children even when their parents are lax."

Miller: "That is the judgment Congress made in Section 1464, and that is the judgment that the court has upheld in Pacifica."

In other words, "We were just following orders. We don't have to think about the orders; we just follow them." In other courts, that's not an argument that, historically, has been given a lot of weight.

Judge Leval then inquired whether the FCC was willing to provide broadcasters with a sort of "safe harbor" by allowing the networks to submit material to the commission for prescreening, to see if the language used would pass FCC muster and be given a "no-action letter." The adult industry tried to do something similar in the mid-'90s, seeking a declaratory judgment from a court in Memphis, Tennessee that the film Body and Soul from Odyssey Group was non-obscene. That motion was rejected by the court, and here, Miller noted that the FCC has no "pre-review" process for broadcast material, opining that such a process might even be illegal under the Communications Act.

"Would it be censorship?" Judge Leval asked.

"It would arguably be a system of prior restraint if the commission were to do that," Miller conceded.

"What's the difference between that and saying, 'Well, if you guess wrong, we've got you'?" Judge Leval pressed. "Isn't that a prior restraint?"

Miller had no real answer to that question, but it's one the adult industry faces daily, since no producer can possibly know, when making a sexually explicit feature, whether what's contained in it will be found someday by a judge or jury to be obscene. If the producer "guesses wrong," they've got him – possibly for five years in prison and a hefty fine.

When his turn came again, Phillips called that process for exactly what it is: "Terroristic."

"With all due respect to Mr. Miller," Phillips began, "his argument in this court is extraordinarily reminiscent of the approach that the FCC took to Pacifica itself, when called to account for the broad position that the commission has adopted, the commission, when it gets to court, immediately retreats to some narrow position, one it couldn't even sustain today. In their brief, they go to great lengths to say that there are two orders at issue here, and that the underlying Golden Globes is not the issue under any circumstances. And yet when pushed on it, obviously Golden Globes is at least at issue in this context because it is the only basis upon which the commission can go down the path of going after fleeting expletives because the policy that preceded Golden Globes would consistently have permitted precisely what the network did in this particular case without any liability, whether with a forfeiture or without a forfeiture."

"It seems to me that the court has to take a very careful look at the risks that come from affirming the commission under these circumstances and what will be poured into that vessel," he continued. "If you read NBC's reply brief, it does an excellent job of saying that simply by giving some kind of leeway to the commission in this context, you end up down the road with a set of rules that are even more terroristic than the ones we had in place at the outset of this litigation. So that's the first point I want to make."

"The second point, Judge Leval, is, I want to go back to your question which goes sort of the core issue of when do you know that community standards tell you that something is patently offensive? And in candor, having listened to the argument on the other side, I have no clue at this point what it is that is offensive. We know that the commission focuses on first blow. [In other words, the initial reaction a child might have upon first hearing the words.] Now, that can't be the problem; as the commission says tonight, you can broadcast this argument live and you can broadcast Cher and Nicole Richie presenting exactly the same words that were out there. That first blow argument is complete set aside. So how are we to know now under what circumstances the community, whatever that means, will find particular uses patently offensive? And the answer is, the only way you know that is after the commission's five unelected individuals take a vote and decide up or down with respect to which of these statements are permissible."

That was one hell of an argument for a mainstream media representative to make ... but can the adult industry possibly hope that, having made that argument, a light will go off above the heads of mainstream media moguls, who now will realize that it is because these same non-criteria – unknown and unknowable community standards; no proof of harm caused by the material; adjudications made by government employees in contradiction to the clear wording of the First Amendment – having previously been applied to adult material, that the government can much more easily take the extra step and apply those same non-criteria to mainstream products?

Only time will tell.

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Mark Kernes

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