The Blog

Restated as a friendly letter, today's decision from the Second Circuit Court of Appeals would go something like this:

Dear FCC,

Please don't make things up. 

For thirty years, in rulings and in testimony before Congress, you took the position that fleeting expletives were not indecent.  You said time and time again that broadcasters wouldn't lose their licenses for allowing people to swear once in a while.  In fact, it's fair to say that you yourselves found the Pacifica 'Seven Dirty Words' opinion embarrassing – you didn't come up with anything like it for many years.  You required something along the lines of “verbal shock treatment” before finding that actionable indecency had been thrust onto the airwaves.

(Do you remember Judge Pooler's disbelieving, somewhat irascible tone at the argument?  Well, it's all there in the opinion, sharp and clear.)

Now, without any evidence that anyone's harmed by fleeting expletives you've done an about-face — you've announced a new policy saying that these words, even said one at a time, ARE indecent. But somehow they're not indecent if they have something to do with news programming (even reporting on a reality TV show), or they're heard at the right time of day, or they're heard as part of a famous movie with an appropriate lead actor. 

You're just simply making this up.  There's no reasoned analysis here.  Your rationales float free — there's no evidence in support of them, and they don't actually connect to your policy.  Heck, Bush and Cheney swear, and no one's hurt!  You can't change your policies without having some analysis, and we don't see anything worth leaning on here.

And, by the way, if we ever have occasion to consider the constitutional arguments on this subject, you're in trouble.  (We know this is dicta, but dicta is helpful, right?  Let's all save some time.)  Your test for indecency is hopelessly vague, we think if the Supreme Court looked at the world now they wouldn't treat broadcast differently from newspapers or the internet, and boy you have given yourselves an awful lot of discretion.  Given all of this and the importance of protecting legal speech (reminder:  indecent speech is legal for adults in this country), we can't imagine that your indecency regime will survive constitutional scrutiny.

Technology expands our capacity to choose, and particularly in this time of history we shouldn't assume that government should make speech choices for us.  And that means you.  So don't make up rationales for protecting all of us from legal speech.

Yours truly,

Your Friends on the Second Circuit

Now, Chairman Martin has already responded, saying (weirdly, in my view) that “this really supports a la carte for cable.”  Chairman Copps is unhappy too. 

The decision marks an important moment of straightforwardness in an otherwise twisted, strangely deferential time.  It's an administrative law opinion — all it's saying is that the Commission didn't do its job in creating a changed policy.  But it signals that some key federal judges, at least, don't think much of the First Amendment thinking at the FCC.

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How does this relate to net neutrality?  Well, the opinion underscores the importance of the Commission's Notice of Inquiry: in the absence of evidence of non-neutrality, network providers can argue that there's no reason to change the current FCC policy (on which they're relying) to require neutrality.  Other arguments are needed, chief among them the will to point out that these private networks are closed to investigation — we can't in fact know whether there's any non-neutrality going on.  But more fruitful, perhaps, will be moving over to the spectrum auction battleground.