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Second Circuit Gets a Second Look at Indecency

Second Circuit Gets a Second Look at Indecency
By: Mario Diaz, Esq. - 1/13/2010

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Today, the Second Circuit Court of Appeals gets a chance to do the right thing and protect families from indecent material as they hear arguments on the now-famous “fleeting expletives” case. Actually, all they need to do is let the Federal Communications Commission (FCC) do its job.

If you remember, this case involved a series of “vulgar expletives” uttered by Cher and Nicole Richie during a broadcast of the Billboard Music Awards.

On their first look at Fox v. FCC, the court sided with the media companies and protected the indecent material, saying the FCC had violated its own procedures when enacting new regulations. Although the FCC acted well within its boundaries, the Second Circuit seemed to be going out of their way to protect broadcasting companies, instead of American families.

Thankfully, the Supreme Court heard the case and held that the FCC’s actions were neither “arbitrary” nor “capricious,” rejecting and remanding the case back to the Second Circuit. The Court remanded the case because, although it did not find the FCC violated any of its procedures, the issue of the constitutionality of the law was not presented to them.

The Second Circuit now must now decide whether protecting children from indecent material through the broadcast airwaves violates the First Amendment to the U.S. Constitution. The companies argue that the FCC fines will “chill” protected speech and would therefore violate the First Amendment.

But a little common sense would go a long way for the Second Circuit. All they have to do is remember that the networks are not being required not to air the content. They are only being required to air it at an “appropriate” time, so that children are not exposed to the indecent material. This is simply a reasonable time/place/manner restriction and not a ban on speech.

The FCC looks at community standards when enacting regulations in this area and there can be no question that the “F-word” and “S-word,” which are the subject of this litigation, are patently offensive and inappropriate in every community in America when broadcast at hours when children are most vulnerable, regardless how many times it is broadcast.

Americans get it. They know their children are not supposed to be hearing the “F-word” or seeing musicians exposing themselves while watching the Super Bowl. They know it is reasonable to require those broadcasters who use the people’s airwaves to reserve this type of material for later at night.

The question is not whether the American people get it. The question is whether the Second Circuit does. And if their previous opinion is any indication, we shouldn’t hold a breath.

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