Fox v. FCC – Is Common Sense and Liberty Coming Back Into Vogue?

Could it be? Has the pendulum that the “values voters” swing upon so giddily to and fro finally started to swing back toward sanity? Is common sense and liberty coming back into vogue, coincidentally, at the same time that all the rats that were on the Bush ship seem to be jumping off, trying to avoid its impending submergement?

If the Second Circuit has anything to say about it, perhaps it has.

In Fox v. FCC, ____ F.3d ____ (2d Cir. 2007), the Second slammed the FCC’s change in its indecency policy with respect to “fleeting expletives” aired by broadcasters.

This case grew from expletives uttered by Cher and Nicole Richie at the Billboard Music Awards in 2002 and 2003. On Dec. 9, 2002, Cher said “Fuck ’em” and on Dec. 10, 2003, Nicole Richie said, “Have you ever tried to get cow shit out of a Prada purse? It’s not so fucking simple.”

You know, and then civilization collapsed. Oh, wait, that didn’t happen. Sorry James Dobson.

The Second Circuit said that the FCC acted arbitrarily and capriciously in suddenly changing its three decades old position that “fleeting expletives” are not actionably indecent. The Second Circuit said that some of the FCC’s justifications for its new policy, in contrast to the earlier policy, were “divorced from reality“. (Nooo! Not the FCC! Not the FCC with its Bush-Monkeys on board!)

The case was remanded to give the FCC an opportunity to explain to the lower court how its policy was not “arbitrary and capricious.” The court said it doubted the FCC’s ability to do so.

What is even better is that the Second Circuit literally poured its soul into 9 pages of dicta that seriously questioned the constitutionality of the FCC’s entire indecency regime.

The Second Circuit “question[ed] whether the FCC’s indecency test can survive First Amendment scrutiny,” and that it was “sympathetic to the contention that the FCC’s indecency test is undefined, indiscernible, inconsistent, and consequently, unconstitutionally vague.” Citing Reno v. ACLU, which struck down a virtually indistinguishable standard, the Court said it was “hard pressed to imagine a regime that is more vague than one that relies entirely on consideration of the otherwise unspecified ‘context’ of a broadcast“. The Court also stated that the FCC’s indecency rule also raises “the separate constitutional question of whether it permits the FCC to sanction speech based on [the agency’s] subjective view of the merit of that speech.”

“We are sympathetic to the networks’ contention that the FCC’s indecency test is undefined, indiscernible, inconsistent and consequently unconstitutionally vague.”

This may only be dicta, but it sure seems to be a vindication of George Carlin, Lenny Bruce, and yours truly (not that I have any right to place myself in their company, I’m just sayin‘).

FCC Commissioner, Kevin Martin is, of course, apoplectic. What do you expect from someone the Bush administration placed in charge of telling us what we can see and hear?

I completely disagree with the court’s ruling and am disappointed for American families,” Martin said. “I find it hard to believe that the New York court would tell American families that ‘shit’ and ‘fuck’ are fine to say on broadcast television during the hours when children are most likely to be in the audience.”

Protect the children. That’s always what the anti-constitutionalists like to argue. Is hearing “fuck” is going to change a child’s life?

Someone much more wise and deserving of his American citizenship than Kevin Martin said:

“Perhaps we do the minors of this country harm if First Amendment protections, which they will with age inherit fully, are chipped away in the name of their protection,”

ACLU v. Gonzalez, 2007 US DIST LEXIS 20008 (E.D. Pa. 2007). If you really want to smile, read this amicus brief filed by former FCC Commissioners. Well, if you love the First Amendment you will smile. If you love what some huckster snake oil salesman who calls himself “moral” tells you to love, well you’ll whine and cry.

Oh, and fuck Kevin Martin.

PS – Seeing this case just made me glow with joy (as much as the amicus brief). Perhaps the same level of common sense and dedication to liberty will infect the TTAB when it hears In Re Cybernet. Brief to TTAB here.