Managers and the Legal Environment 7th Edition by David Madsen, Constance Bagley

Exercise 10

Section 1464 of Title 18 of the U.S. Code provides that "[w]hoever utters any obscene, indecent, or profane language by means of radio communication shall be fined under this title or imprisoned not more than two years, or both." The Federal Communications Commission (FCC) defined "indecent" speech as "language that describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities and organs, at times of the day when there is a reasonable risk that children may be in the audience." In the years prior to 2004, the FCC held that a single, nonliteral use of an expletive was not actionably indecent. However, after the 2003 Golden Globes, where U2 Band member Bono stated "this is really, really, fucking brilliant," the FCC changed its position and held that a single, nonliteral use of an expletive (called a "fleeting expletive") could be actionably "indecent" under the statute (this new standard was called the "Golden Globes standard"). The FCC then found that four programs were in violation of the statute under the new policy, including the 2002 Billboard Music Awards, the 2003 Billboard Music Awards, certain episodes of NYPD Blue , and CBS's The Early Show. All four programs involved "fleeting expletives," and the FCC proclaimed that any use of "fuck" or "shit" was indecent and profane, regardless of how the word was used in a sentence or how many times it was used. A number of networks, including NBC Universal, Fox Television Stations, Inc., CBS Broadcasting, Inc., and ABC, Inc., filed petitions for reconsideration of this policy, as well as constitutional challenges on First Amendment grounds. The networks' administrative argument, that the FCC's interpretation of the statute was arbitrary and capricious, failed in the Supreme Court, where the Court found that "[t]he Commission could reasonably conclude that the pervasiveness of foul language, and the coarsening of public entertainment in other media such as cable, justify more stringent regulation of broadcast programs so as to give conscientious parents a relatively safe haven for their children." Is the FCC's "Golden Globes standard" constitutional? What arguments can be made by the FCC? By the networks? What public policies are implicated? [ Fox Television Stations, Inc. v. FCC , 613 F.3d 317 (2d Cir. 2010), cert. granted , 131 S. Ct. 3065 (2011).]