A First Amendment Analysis of the FCC’s Evolving Regulation of Broadcast Indecency and Standards
So Easily Offended? A First Amendment Analysis of the FCC’s Evolving Regulation of Broadcast Indecency and Standards for our Contemporary Community
Paige Connor Worsham, 6 First Amend. L. Rev. 378 (2008)
This Note will specifically address the second prong of the FCC’s indecency definition, “contemporary community standards,” and the FCC’s ability to manipulate its own comprehension and application of the standard. As a result, the indecency policy operates in an inconsistent and vague manner, prompting First Amendment concerns. In Fox Television Stations, Inc. v. FCC, the United States Court of Appeals for the Second Circuit found that the FCC’s new fleeting expletives policy was arbitrary and capricious, violating the Administrative Procedure Act and seemed, in dicta, to imply that the agency’s entire indecency definition may no longer be constitutionally sound. Judge Pooler, writing in the 2-1 decision, stated that the court was “sympathetic to the Networks’ contention that the FCC’s indecency test is unrefined, indiscernible, inconsistent, and consequently, unconstitutionally vague.” While supposedly invoking contemporary community standards to measure patently offensive material in its definition, the FCC does not seem to adhere to this test in regulatory practice. The test is ambiguous, resulting in indistinct parameters and chilling the speech of broadcasters.