US Senate Commerce Committee today passed a bill that would allow FCC to fine broadcasters for slip of the tongue expletives, negating a ruling by federal appeals court in New York that commission's policy on 'fleeting expletives' is arbitrary and capricious.
The Protecting Children from Indecent Programming Act introduced by Senator John Rockefeller (D-WV) would effectively overturn the court decision on the Fox Television Stations v. FCC in which the court ruled: "We find the FCC's new policy sanctioning 'fleeting expletives' is arbitrary and capricious under the Administrative Procedures Act for failing to articulate a reasoned basis for its change in policy."
A mandate by Congress that a “fleeting expletive” can now be found indecent will create a vast chilling effect on broadcast speech, the advocacy group Center for Democracy and Technology claimed.
CDT points out that prior to this bill and the FCC’s policy change, the FCC exercised discretion in determining which utterances were indecent, and consistently found that one-time uses of curse words were not indecent.
The bill would empower FCC to find fleeting expletives indecent, it is highly likely that broadcasters will censor themselves even more to avoid being targeted by the Commission, the group argued.
But CDT also points out that if Senator Rockefeller’s bill becomes law, it will certainly force the courts to consider the constitutional question: Does the FCC have First Amendment authority to censor the use of a single curse word over the airwaves?
Currenty, FCC’s constitutional authority to regulate broadcast content rests on the 1978 Supreme Court case FCC v. Pacifica Foundatio in which the Court held that the FCC had properly found comedian George Carlin’s “Seven Dirty Words” monologue to be indecent.
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