Holy Shit, The Second Circuit Ruled In Favor Of Fleeting Expletives
How perfect would it have been if Adam "Major League Asshole" Clymer (Bush called him that, I'm not calling him that!) had written this NYT story? Here's an excerpt:
If President Bush and Vice President Cheney can blurt out vulgar language, then the government cannot punish broadcast television stations for broadcasting the same words in similarly fleeting contexts.
That, in essence, was the decision on Monday, when a federal appeals panel struck down the government policy that allows stations and networks to be fined if they broadcast shows containing obscene language.
Although the case was primarily concerned with what is known as “fleeting expletives,” or blurted obscenities, on television, both network executives and top officials at the Federal Communications Commission said the opinion could gut the ability of the commission to regulate any speech on television or radio.
Kevin J. Martin, the chairman of the F.C.C., said that the agency was now considering whether to seek an appeal before all the judges of the appeals court or to take the matter directly to the Supreme Court.
The decision, by a divided panel of the United States Court of Appeals for the Second Circuit in New York, was a sharp rebuke for the F.C.C. and for the Bush administration. For the four television networks that filed the lawsuit — Fox, CBS, NBC and ABC — it was a major victory in a legal and cultural battle that they are waging with the commission and its supporters. ...
Here is another:
...Although the judges struck down the policy on statutory grounds, they also said there were serious constitutional problems with the commission’s attempt to regulate the language of television shows.
“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.”
In his dissent, Judge Pierre N. Leval defended the commission’s decision to toughen its indecency policy. ...
I guess Leval got tired of fleeting expletiving up trademark and copyright law and decided to try to mess with the First Amendment for a change of pace. More by Paul Horwitz at my temporary auxilliary blog, Prawfsblawg.
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