FCC's F- and S-word jihad total BS, court says

There's such a thing as Doing Right.

But then politicians get involved and end up Going Too Far.

And then the courts get involved, and the baby just might get thrown out with the dirty bath water. Reporteth The Hollywood Reporter:

The federal appeals court in New York City on Monday tossed out a key FCC ruling that said a slip of tongue gets broadcasters a fine for indecency, telling the commission that it failed to give a good reason for its decision and couldn't likely find a good reason if it had to.

"We find the FCC's new policy sanctioning 'fleeting expletives' is arbitrary and capricious under the Administrative Procedures Act for failing to articulate a reasoned basis for its change in policy," the court wrote in a 2-1 opinion.

While a majority of the judges found little to like about the commission's 2006 decision, it sent the order back to Washington, allowing the panel to get another stab at writing the rules.

But even the court's remand came with a catch as it warned the FCC to ensure that "further proceedings" are "consistent" with the court's decision.

"We are doubtful that by merely proffering a reasoned analysis for its new approach to indecency and profanity, the commission can adequately respond to the constitutional and statutory challenges raised by the networks," Judge Rosemary Pooler wrote.

"Nevertheless, because we can decide this case on this narrow ground, we vacate and remand so that the commission can set forth an analysis. While we fully expect the networks to raise the same arguments they have raised to this court if the commission does nothing more on remand than provide additional explanation for its departure from prior precedent we can go not further than this opinion."

FCC chairman Kevin Martin took the decision hard, saying it is the judges who are wrong, not the commission.

"I find it hard to believe that the New York court would tell American families that 's***' and 'f***' are fine to say on broadcast television during the hours when children are most likely to be in the audience," Martin said in a statement. "The court even says the commission is 'divorced from reality.' It is the New York court, not the commission, that is divorced from reality in concluding that the word 'f***' does not invoke a sexual connotation." [Martin used the actual s- and f-words. I took them out. -- R21]

In its decision, the commission decided that language used by Cher and Nicole Richie during the 2002 and 2003 Billboard Music Awards aired by the Fox Broadcasting Co. was indecent and profane.

Opponents of the commission's attempts to regulate speech called the decision a victory.

"Score one for the First Amendment," said Media Access Project president and CEO Andrew Jay Schwartzman. "It's a shame that citizens and broadcasters had to seek protection from the courts, but it is very reassuring to know that one branch of the government can rise above demagogy."

MAP attorneys represented the Center for Creative Voices in Media as intervener in the case. CCV's members include many members of the creative community, and its brief to the court stressed the chilling effect of the FCC's action on writers, directors and other artists.

The decision did not go unnoticed in Hollywood as AFTRA, DGA, SAG, the WGA East and WGA West issued a joint statement applauding the decision.

"Actors, directors, writers and broadcast personnel are pleased that the Second Circuit Court of Appeals today rejected the FCC's effort to expand their authority and influence over creative content," the guilds said.

"The fines imposed have had a chilling effect on free expression over the airwaves. If allowed to stand, these fines would have subjected all programming to arbitrary claims of indecency without regard to context or type of programming. We are united in our opposition to this, or any other, FCC decision to overturn long-standing policy in this area, and replace it with arbitrary decision-making standards that tread on free speech."

DOING RIGHT is hammering broadcasters for willful indecency -- including indecent speech -- over the public airwaves. In other words, I don't care if you write 30,000 articles for your local alternative weekly that feature frequent, flagrant and flamboyant use of f***, s***, m*****f*****, c***, d*** and p****.

Or, for that matter, g****** m************ son-of-a-b****ing rat-faced f****** bastard. Just so long as the creative coupling of expletives is directed at all the right people.

But if you walk into my church and intentionally start using that language in front of a bunch of kids, I'm going to whip your ass.

That's the common-sense distinction most Americans would make in this pluralistic society. Unfortunately, in the wake of Janet Jackson's 2004 Super Bowl "wardrobe malfunction," the Federal Communications Commission decided it was all done with any distinc-to-fyin'.

HEWING TO FCC LOGIC, if cracking down on (ahem) simulated intercourse and R&B singers' ta-tas flopping all over the place on network TV is a good thing, and hammering on Bono's inadvertent F-bomb at the 2002 Golden Globes is better, then making all over-the-air broadcasters terrified to even broadcast football games live -- for fear of someone yelling a Bad Word (TM) too close to a microphone -- must be the Bestest Thing Ever.

Welcome to Going Too Far and, thus, messing up a good thing.

And all God's people said . . . Oy veh!