Constitutional Law

2nd Circuit Strikes FCC Expletive Rule, Says Blanket Ban on F-Word & Others Violates 1st Amendment

Saying that a blanket ban on all use of certain expletives on television is unconstitutionally vague and chills the right of free speech, a federal appeals court has struck down a Federal Communications Commission policy that any use of profanity referring to sex or excrement is inherently indecent and could lead to mandatory fines.

“By prohibiting all ‘patently offensive’ references to sex, sexual organs and excretion without giving adequate guidance as to what ‘patently offensive’ means, the FCC effectively chills speech, because broadcasters have no way of knowing what the FCC will find offensive,” the New York City-based 2nd U.S. Court of Appeals wrote in today’s opinion (PDF).

“The FCC’s policy violates the First Amendment because it is unconstitutionally vague,” the court summarizes, “creating a chilling effect that goes far beyond the fleeting expletives at issue here.”

Fox Television Stations and other networks filed suit over the policy in 2006. A prior 2nd Circuit finding in their favor, based on what the appeals court determined to be an arbitrary and capricious policy under the Administrative Procedure Act was reversed by the U.S. Supreme Court and remanded for consideration of constitutional arguments that weren’t reached the first time around.

Hat tip: Associated Press.

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