[JURIST] The Federal Communications Commission (FCC) [official website] on Thursday appealed [text, PDF] a decision [JURIST report] by the US Court of Appeals for the Second Circuit that the agency’s television indecency rule [text] is unconstitutionally vague in violation of the First Amendment. The July appellate court decision further held that the FCC’s rule, which allowed broadcasters to be fined based on isolated expletives, chills protected speech, as broadcasters would err on the side of not airing controversial matter, rather than face the prospect of significant fines. The agency’s appeal for rehearing and an en banc rehearing argues that the Second Circuit’s decision conflicts with Supreme Court precedent, particularly the court’s decision in FCC v. Pacifica Foundation [materials], the “Seven Dirty Words” decision. The FCC concluded its argument by asserting that, under the Second Circuit’s prior ruling, the agency would be unable to develop a clear indecency rule, and:
The panel’s opinion may theoretically leave open the possibility that the FCC could return to something like its pre-1987 policy, which focused on Carlin’s seven dirty words. During the time when that policy prevailed, however, “not a single enforcement action was brought.” It is easy to understand why, in light of the freedom that policy gave to broadcasters to air indecent material so long as they “avoided certain words.”
Under Federal Rule of Appellate Procedure 40 [text], there is no absolute right for the networks involved in the controversy to answer the FCC’s petition for rehearing, and the court may issue a decision without hearing re-argument.
The US Supreme Court originally remanded the case to the appeals court after ruling [opinion text; JURIST report] in April 2009 that the FCC did not act arbitrarily and capriciously in changing its policy regarding fines for the broadcast of isolated expletives. That ruling overturned a previous decision [JURIST report] by the Second Circuit, which held that the 2004 policy was arbitrary and capricious under the Administrative Procedure Act [text] for failing to articulate a reasoned basis for its change in policy. The Supreme Court declined to address the constitutionality of the FCC policy in its decision and remanded the case to the lower court for further consideration of the constitutional issue.