Fleeting expletives

We welcome Mark Conrad to the JSM blog. Mark is an Associate Professor of Legal and Ethical Studies at Fordham and writes a lot on sports law. The article below appeared in a recent edition of the Sport Business Journal--

Although many pages have been written on the subject of broadcast indecency, sports broadcasts pose some unique problems. Expletives from players, coaches and fans in a live broadcasts could result in fines by the FCC, especially when it adopted a "fleeting expletives" standard in 2003. Last month's ruling federal appeals court ruling forces the FCC back to the drawing board, but does not preclude an appeal.

Can a sports broadcaster be fined for transmitting a four-letter word said by a player, coach or fans during a match? For the last four years, the Federal Communications Commission concluded yes. In May, a federal appeals court forcefully said no. In the equivalent of a technical knockout, the U.S. Court of Appeals for the 2nd Circuit handed the FCC a stinging defeat when a majority concluded that the agency's 2003 rules expanding the definition of indecency and profanity to isolated instances known as "fleeting expletives" were "arbitrary and capricious." According to the majority opinion in the 2-1 ruling, the commission's explanations did not justify such an expansion. The ruling forced the agency to come up with a more compelling justification, one that the judges doubted the FCC could do.

Although much space has been devoted to the issue involving 'shock jocks' like Howard Stern, far less has focused on the effect of the 2003 rules on live sports broadcasts and the heavy fines imposed by the FCC. For those radio and television sports rights holders, the specter of six-figure fines for four-letter words resulted in a series of difficult decisions, such as the use of time delays or otherwise 'sanitizing' the production by avoiding miking to produce as 'safe' a broadcast as possible.

With the ruling in Fox v. FCC, all broadcasters, but particularly sports broadcasters, can breathe a sigh of relief. Think of the implications if the court had upheld the commission's claim that a fleeting expletive violates indecency and profanity restrictions. Those of us who remember John McEnroe not only recall his tennis exploits, but also his argumentative skills. More than once his protests against officials were laced with profanities, some of which were heard live by millions. If these rants had occurred in 2006 instead of 1986, broadcasters likely would have been sanctioned, to the tune of up to $325,000 per violation under the 2006 Broadcast Indecency Enforcement Act, where Congress raised the maximum fine for an indecency infraction tenfold to $325,000.

Since taking the helm of the FCC, both former Chairman Michael Powell and his successor, Kevin Martin, have made indecency a focal point of their agenda. Although a federal statute barring obscenity, indecency and profanity on the air has been on the books for decades, the first indecency determination did not occur until the mid-1970s when the Supreme Court, in FCC v. Pacifica Foundation, concluded that a repetitive monologue of 'seven dirty words' constituted indecency. The court upheld the agency's definition —
"language that describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities and organs, at times of the day (from 6 a.m.. to 10 p.m.) when there is a reasonable risk that children may be in the au. to 10 p.m.) when there is a reasonable risk that children may be in the audience."

However, to avoid charges of censorship, the FCC maintained a policy exempting fleeting expletives, covering isolated occurrences where four-letter words picked up from live events make it on air. The shift from that policy did not occur in the highly publicized Janet Jackson wardrobe malfunction event during the 2004 Super Bowl, but rather in a series of determinations in previous years. The use of certain four-letter words, including the f-word, by Bono, Cher and Nicole Richie during the live broadcasts of the 2003 Golden Globe Awards (NBC) and the 2002 and 2003 Billboard Music Awards (Fox), respectively, led the FCC to conclude that the "patently offensive" use of these words were indecent and profane, despite their fleeting nature. Admitting that this was a change of policy, the FCC did not impose fines, since the broadcasters had no notice of the policy change. NBC and Fox appealed to the federal courts.

Let's think of the ramifications of this interpretation in the context of a sports broadcast. What if fans start yelling four-letter words while protesting a call and the public can hear those protests? What if a microphone picks up the sounds of players cursing? Or the game officials? Each of these events, coupled with the increased fines under the 2006 Decency in Broadcasting Act, chills the broadcaster's First Amendment rights, but is discriminatory as well, since cable and satellite programming is not subject to the indecency standards.
But sports broadcasters should note that the 2nd Circuit's ruling represents a temporary victory. It did not address the constitutional questions, but rather focused on the lack of evidence for the FCC's conclusions. The court gave the FCC the opportunity to justify the rules. And if the FCC wishes, it may either seek a rehearing in front of the entire body of judges in the federal appeals court or an appeal to the U.S. Supreme Court.

Given that 2008 is an election year, Congress may take it upon itself to pass legislation codifying a standard that encompasses isolated expletives, or expand indecency to cable and satellite. Given the amount of sporting events on these media, this could be an ominous development. No matter what the courts rule or the FCC decides, sports broadcasters, cable companies and satellite providers and their trade associations may want to consider a different resolution of the problem: a political one. If Congress enacts legislation expanding indecency to cable and satellite, let it create a special exemption, a legislative waiver of liability for live sports broadcasts. Such a solution would create a legal certainty in a very controversial and legally fluid area.