Appeals Court Asks What the FCC Happened to Free Speech?

Three of the nation's most distinguished jurists heard arguments in Fox vs. the Federal Communications Commission yesterday in the US Second Circuit over whether the FCC's recent decisions on what constitutes indecency, and under what circumstances, are "arbitrary and capricious" under the law and therefore must be overturned.

While the issues could not be more serious - censorship, free expression, the First Amendment -- still, it was a courtroom scene that cried out for a Saturday Night Live parody. Under the nonjudgmental gaze of C-SPAN cameras that carried the proceedings live and uncensored in mid-morning on cable TV -- which is not subject to FCC indecency rules - the able lawyer for Fox, Carter Phillips, strode to the lectern and didn't finish his first paragraph before unflinchingly firing "fucking" and "cow shit" at the judges.

With the words that the FCC claims are poisoning a generation of America's youth now out of the closet, Judges Pierre Leval and Peter Hall joined in, unhesitatingly dropping the F-bomb as they sparred with both sides' counsel. Surely, this was the first time that word had been so strenuously invoked within that august courtroom. Meanwhile, Judge Rosemary Pooler chose to rely on euphemisms and the circumlocution "those words," yet still managed to zing the sharpest questions.

For those at home watching on TV - including, no doubt, many schoolchildren home for the holiday break - often soporific "public affairs television" suddenly got a lot more interesting. C-SPAN also repeated the oral argument last night in primetime, again uncensored, will repeat it again on Saturday night in primetime, and also posted it on its website for streaming. By its actions, C-SPAN implicitly argued that it's important for all Americans to have the opportunity to hear this debate, uncensored - and we don't believe it's harmful to children. Kudos to C-SPAN.

The judges appeared to agree with that perspective, repeatedly pressing the game FCC counsel on the Commission's "evidence" that supported its sweeping assertion that hearing naughty words on TV harms children. The Commission's counsel could cite none. And the judges seemed highly skeptical of the FCC argument that it needed to censor speech because some parents allowed their kids to have a television in their bedroom. If America's parents are willing to accept the risk that their children might hear dirty words on broadcast TV, well, wasn't that their right? asked Judge Pooler. Why was the FCC robbing parents of their freedom to choose what -- and what not -- to allow their children to watch?

What the judges' questioning clearly established is that the FCC "process" in judging what is "indecent" is arbitrary, subjective, and inconsistent, and that the Commission has likely overstepped its legal authority. In the opinion of most in the courtroom, the question was not whether the Second Circuit judges would overturn the FCC, but how quickly they would do it, and on what grounds. Stay tuned for the next episode of What the FCC Happened to Free Speech?