A federal appeals court seemed poised Wednesday to toss out a government policy that can lead to broadcasters being fined for allowing even a single curse word on live television, with three judges hearing arguments sometimes mocking the government's position.
All three judges on a panel of the 2nd U.S. Circuit Court of Appeals in Manhattan kept a government lawyer on the defensive with dozens of questions suggesting that the current policy violates the First Amendment. The judges then reserved decision.
Attorney Jacob Lewis for the Federal Communications Commission said the policy was designed to protect children.
"What are you protecting children from?" asked Judge Pierre Leval.
Judge Peter Hall questioned how children are able to discern the difference when the FCC allows broadcasters more latitude in news coverage should a profanity or a sexual reference slip out.
Judge Rosemary Pooler said she understood broadcasters' argument that the policy and the threats of fines would have a chilling effect on live coverage of events where someone might let a profanity slip out.
"You know what a good lawyer would say, `If in doubt, don't run it,'" she said. "And that's the chill."
In 2004, the FCC adopted a policy that profanity referring to sex or excrement is always indecent.
The policy was put in place after a January 2003 NBC broadcast of the Golden Globes awards show, in which U2 lead singer Bono uttered the phrase "f——— brilliant." The FCC said the "F-word" in any context "inherently has a sexual connotation" and can lead to enforcement.
Fox Television Stations, owned by Rupert Murdoch's News Corp., and other networks challenged the policy in 2006 after the FCC cited the use of profanity during awards programs that were aired in 2002 and 2003.
The FCC found its ban also was violated by a Dec. 9, 2002, broadcast of the Billboard Music Awards in which singer Cher used the phrase "F—- 'em" and a Dec. 10, 2003, Billboard awards show in which reality show star Nicole Richie said, "Have you ever tried to get cow s—- out of a Prada purse? It's not so f——— simple."
The arguments Wednesday occurred after the fight between the broadcast networks and the FCC was returned to the appeals court in November by the Supreme Court, which had decided a narrower point of law, leaving the judges free to decide the policy's constitutionality.
Leval repeatedly questioned what the fuss at the FCC was about, saying sex has been a primary preoccupation of people and of literature forever and that the FCC seemed obsessed with "single utterances and arguably trivial indecent uses."
He questioned whether "Hamlet" could be performed on television. Then he recited from memory a portion of the play after which Hamlet's mother married Hamlet's uncle soon after Hamlet's father's death.
Leval said the FCC's rules seemed so vague that broadcasters had an impossible task.
"I wonder if they can have any idea what they can broadcast?" he said.
Pooler questioned whether the policy could lead to the end of live broadcasts on network television.
"I guess they don't use those words in small towns," she said in a mocking tone.
At one point, Lewis said the FCC "bends over backwards" to give sufficient room to news organizations on radio and television.
Pooler asked: "Does the First Amendment allow us to rely on you bending over backwards?"
Leval asked if those families with the strictest rules regarding profanity were dictating the rules for all families and if that was fair. He said it seemed there was technology that could allow families with a zero tolerance for profanity to keep live television out of their homes.
He also questioned whether those with no tolerance for profanity keep their children from going out the door "because they might hear a nasty."
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