The saga of the Federal Communications Commission and its censorship of “indecency” on radio and broadcast television may be coming to a climax in the next few months. Through a combination of administrative maneuvering and broadcast industry reluctance to challenge the same agency that gives it valuable licenses, the FCC’s constitutionally dubious censorship scheme has been shielded from court review for decades. But now a challenge to the system of indecency regulation is in court – in fact, two challenges are pending in different courts – and the big question is whether the judges will confront the implications of the agency’s ever-shifting and politically driven censorship regime, or whether they will, as the FCC’s lawyers are urging, issue narrow rulings – in one case dealing solely with findings of indecency and “profanity” against two TV music award shows in which celebrities uttered “fleeting expletives”; and in the other, addressing only the indecency finding against Janet Jackson’s now-famous “wardrobe malfunction” at the 2004 Super Bowl halftime show.

The history of how the FCC got the extraordinary power to censor constitutionally protected speech that it considers “indecent” on the airwaves begins with the Supreme Court’s 1978 decision in a case called FCC v. Pacifica Foundation. The agency found a broadcast of George Carlin’s immortal “Filthy Words” monologue – a satiric commentary on social taboos surrounding common Anglo-Saxon words – unfit for airing during times of the broadcast day when children might be listening. The Supreme Court upheld the FCC in a narrow decision that assumed the monologue was indecent – that is, under the FCC’s definition – “patently offensive” according to “contemporary community standards for the broadcast medium.” The Court did not address the larger question of whether such a standard is unconstitutionally vague because of its subjectivity. The Court – or at least, a narrow majority of five justices – did say that the FCC’s censorship regime was justified by the “unique pervasiveness” of broadcasting, its long history of regulation, and the fact that is “uniquely accessible to children.” Subsequent cases have made clear that this kind of federal government censorship is not permissible in any other medium except broadcasting. And these days, of course, broadcast TV is virtually indistinguishable from cable, since 90% of U.S. households now receive all their TV through one cable or satellite distributor.

For the 28 years after the Pacifica decision, the only judicial decisions relating to the FCC’s censorship regime had to do with procedures, including the contours of the late-night “safe harbor” period when “indecent” speech can be aired. Judges assumed that the Supreme Court had approved the indecency regime, despite its vagueness and unpredictability. Even after the Supreme Court ruled in 1997 that the FCC’standard of “patent offensiveness” is unconstitutional when applied to the Internet, the agency and its supporters continue to argue that Pacifica is still good law.

Then came the 2003 Golden Globe Awards show, when an excited Bono exclaimed over the airwaves that his award was “fucking brilliant” (“brilliant being British for just plain great); the rise of the Parents Television Council, which inundated the FCC with complaints about raw language or sexual content on TV; and finally, in Feburary 2004, the “wardrobe malfunction.” Pressed by the political right, the previously “laissez faire” FCC switched gears, found Bono’s brief and nonsexual exclamation to be both “indecent” and “profane,” and announced a new blanket rule banning even “fleeting expletives” (primarily, it seems, what the agency delicately calls “the ‘F’ word” and “the ‘S’ word”). It was at this point that the agency also added “profanity” to its censorship arsenal; this it defined even more loosely than “indecency,” as any language that the commissioners decided was “so grossly offensive as to amount to a nuisance.”

Fast forward to 2005 and the FCC announced a narrow exception to its anti-“fleeting expletives” rule for the film “Saving Private Ryan,” which had been broadcast by some ABC affiliates on the previous Veterans Day. When would this exception apply? Only when, in the considered judgment of five FCC commissioners, it was necessary for the artistic message of the broadcast.

Applying its new rules, the FCC then issued an “Omnibus Order” in March 2006 that was so appalling that the entire broadcast industry, which usually tries to make nice with the agency, marched into court with a broad-ranging First Amendment challenge. The Omnibus Order resolved dozens of indecency complaints the agency had received between 2002 and 2005. It found indecency (sometimes profanity as well) in ten cases, and exonerated more than a dozen others. The distinctions it drew bordered on the ludicrous: “bullshit” in an “NYPD Blue” episode was indecent and profane, but “dickhead” was not; expletives uttered by interview subjects in Martin Scorsese’s documentary “The Blues” were indecent and profane because (in the commissioners’ considered opinion) unlike Steven Spielberg in “Saving Private Ryan,” Scorsese could have purged the words without undermining his artistic message.

Four of the ten guilty verdicts enabled the broadcasters to take the Omnibus Order to court, because there was no appeal available before the agency. In the past, the FCC would issue a “Notice of Apparent Liability” for an indecency fine, then entertain an “Opposition” – essentially an appeal within the agency. Further proceedings would then slow to a crawl, with a final agency decision barely discernible on the distant horizon. Without such a final decision, broadcasters were unable to take the matter to court. As a case in point, the administrative appeal of the 2004 FCC decision announcing the new fleeting expletives rule and applying it to Bono’s “fucking brilliant” was still pending within the agency, even as it applied the new rule two years later to dozens of other shows.

Perhaps realizing that its decision not to fine four shows exposed its whole censorship regime to judicial scrutiny, the FCC in September 2006 asked the U.S. Court of Appeals for the Second Circuit for a “remand” so that it could reconsider these four rulings. It then found ways to back off two of them: for “NYPD Blue,” it dismissed the indecency complaint because the person who filed it did not live within the broadcast range of the station involved; for “The Early Show,” in which a reality TV participant had used the word “bullshitter” in the course of an interview, the FCC decided that since it was a news format show, it was entitled to some First Amendment leeway, even though this certainly did not mean that all news shows would now have an exemption from the indecency and profanity bans.

This left two indecency findings that the FCC could not figure out any way to reverse – not, at least, without backing off from its Golden Globe ruling two years earlier. These were Billboard Award shows from 2002 and 2003, broadcast by Fox, in which Cher and Nicole Richie uttered “fleeting expletives.” The FCC now says that the Court of Appeals should rule narrowly, simply affirming that Pacifica is still good law, and deferring to the agency’s “expert” judgment that the crude language in both cases can be banned from the airwaves for nearly all hours of the broadcast day.

The broadcasters, meanwhile – with the exception of ABC, which has now backed out of the case – argue that Pacifica no longer makes any sense (if it ever did), that broadcasting is no longer “uniquely pervasive,” that there are now technologies in place to shield children from racy language on TV if their parents want to use them, and that decades of experience with the FCC’s censorship regime show that it is politically driven, unpredictable, and deeply offensive to the First Amendment. They are supported by three “friend of the court” briefs – one of which was joined by 20 writers, filmmakers, performers, and free speech organizations. Like the broadcasters, these briefs argue that the agency’s rulings for some shows with expletives or sexual content and against others amounts to an “arbitrary and capricious” abuse of the administrative process, that the whole censorship scheme is unpredictable and has caused massive self-censorship of valuable programming, especially among noncommercial broadcasters that can’t afford legal fees and massive fines, and that the First Amendment bars government officials from second-guessing artistic judgments by TV producers and filmmakers.

Many of the same arguments are being presented in a case pending in the Court of Appeals for the Third Circuit, in which CBS is challenging the huge fines that the FCC imposed for the “wardrobe malfunction.” Both cases are on expedited schedules. So, we will probably know within the next year whether or not the courts are willing to take a broad look at the situation, and hopefully strike down the FCC’s bloated, cynical, and deeply unconstitutional censorship scheme.

For more background on the FCC’s indecency censorship over the years, see “What is the Fuss About Janet Jackson’s Breast?”, “More Than Seven Dirty Words”; and “The Strange Case of Sarah Jones.”

[Marjorie Heins directs the Free Expression Policy Project at the Brennan Center for Justice, and wrote the friend of the court brief (PDF) on behalf of 20 organizations in the Second Circuit case, Fox Television Stations et al. v. FCC.]