Yesterday the Second Circuit issued a 2-1 decision in Fox Television et al v FCC, holding “that the FCC’s new policy sanctioning ‘fleeting expletives’ is arbitrary and capricious under the Administrative Procedure Act for failing to articulate a reasoned basis for its change in policy.” The fleeting expletives–what a great term!*–at issue were:
- Cher’s statement at the 2002 Billboard Music Awards: “People have been telling me I’m on the way out every year, right? So fuck ‘em.”
- Nicole Richie’s statement at the 2003 Billboard Music Awards: “Have you ever tried to get cow shit out of a Prada purse? It’s not so fucking simple.”
- Characters on NYPD Blue saying “bullshit,” “dick,” and “dickhead,” and
- A bounced Survivor contestant referring in an interview on The Early Show to a fellow contestant as a “bullshitter.”
The case arose when Fox sought review of the FCC’s intent to sanction Fox for the Billboard Music Award incidents. The proposed sanctions reflected what the majority considered to be “a significant departure from positions previously taken by the agency and relied on by he broadcast industry.” The court vacated the FCC’s order and remanded the matter to the commission for further proceedings.
The court’s Administrative Procedure Act analysis focused on the FCC’s inability to explain its evolving policy regarding fleeting expletives–expletives that are accidental, spontaneous, or isolated as contrasted with expletives that stroll in leisurely, take off their coat, pull up a chair, and stay for dinner. The court took the FCC to task for the inconsistency of its new policy, treating fleeting expletives uttered during bona fide news broadcasts as not indecent or profane. That an interview with a former Survivor contestant on The Early Show is considered to have occurred during a bona fide news broadcast should make Edward R. Murrow rise from his grave in righteous indignation, but I digress. The court also noted that the FCC’s policy fails to distinguish between literal use of expletives to refer to sexual or excretory functions and non-literal use such as Bono’s exclamation that winning a Golden Globe award is “really, really fucking brilliant.” Amusingly the court reinforces the point about non-literal usage by citing “President Bush’s remark to British Prime Minister Tony Blair that the United Nations needed to ‘get Syria to get Hezbollah to stop doing this shit’ and Vice President Cheney’s widely-reported ‘Fuck yourself’ comment to Senator Patrick Leahy on the floor of the U.S. Senate.”
While not deciding them the court nodded to the Constitutional issues raised in the briefs and at oral arguments, stating “we are skeptical that the Commission can provide a reasoned explanation for its “fleeting expletive” regime that would pass constitutional muster” and warning the FCC that, on remand, it cannot merely articulate reasons for its new policy regarding fleeting expletives without modifying the policy to take the court’s analysis into account. The Second Circuit expects the FCC to litigate the matter further.
FCC Chairman Kevin Martin’s 635-word press release criticizing the Second Circuit decision uses “fuck” or a variation six times and “shit” four times, achieving an impressive 1:63.5 expletive-to-benign ratio. In other words, the Chairman is really f***ing s***ting bricks.