The Second Circuit today overruled recent FCC policy which had created a stricter standard on obscene language.
Court Rebuffs F.C.C. on Fines for Indecency
Reversing decades of a more lenient policy, the [FCC] had found that the mere utterance of certain words implied that sexual or excretory acts were carried out and therefore violated the indecency rules.
But the judges said vulgar words are just as often used out of frustration or excitement, and not to convey any broader obscene meaning. “In recent times even the top leaders of our government have used variants of these expletives in a manner that no reasonable person would believe referenced sexual or excretory organs or activities.”
“We are skeptical that the commission can provide a reasoned explanation for its ‘fleeting expletive’ regime that would pass constitutional muster,” said the panel in an opinion written by Judge Rosemary S. Pooler and joined by Judge Peter W. Hall. “We question whether the F.C.C.’s indecency test can survive First Amendment scrutiny.”
One of the issues networks had raised was whether they would be fined for broadcasting “Saving Private Ryan” due to the expletives in the script. On that point, the FCC ruled "that deleting the expletives “would have altered the nature of the artistic work and diminished the power, realism and immediacy of the film experience for viewers.” The judges in today’s case apparently feel that it will be very difficult to draw a line allowing vulgarity in “Private Ryan”, but disallowing it in NYPD Blue, where the FCC ruled the other way.