Wednesday, July 14, 2010

Fox Television Stations, Inc. v. FCC

On July 13th a federal appeals court overturned the Federal Communication Commission’s  “Fleeting Expletive,” policy (see news coverage at the New York Times,  Fox News, and The First Amendment Center News)The policy, implemented in 2004, allowed the FCC to fine broadcasters for airing certain tabooed words and references, even if their use was rare and accidental.  The court found the policy to be unconstitutionally vague, and therefore an infringement on free speech.  The FCC has not yet announced whether it will appeal the decision to the U.S. Supreme Court or will rewrite the policy to pass constitutional scrutiny.

The court’s decision does not mean that television and radio broadcasters can suddenly air anything they want without restrictions. The decision was aimed at one particular regulation out of many, a regulation that was written too hastily, without careful consideration of its Free Speech implications. 

The decision has no direct bearing on library censorship, but reminds us of a legal principle that applies to all forms of Censorship, whether they affect expression in audio, video, or print formats: the need to be specific. Long-established jurisprudence says that restrictions on Free Speech must not only support legitimate governmental objectives, but must also be constructed as narrowly as possible to meet only those legitimate objectives.

This, of course, is a problem for wanna-be book-banners, who seem to have a severe disability when it comes to getting specific. Last summer, when the West Bend, WI, debacle was in progress, I pleaded repeatedly for the censors to come up with a set of standards they thought should be used to determine which books would be restricted and which wouldn’t. They steadfastly refused.  I reviewed many of their targeted books here on this blog, and could find no pattern, no rhyme or reason, to what was and wasn’t on their hit list. This was quickly repeated in Lake County, FL, with the hodgepodge of books challenged there, again without ever offering a set of censorship criteria. It’s going on right now in Fond du Lac, WI, where a censor has gone so far as to circulate a petition demanding that book acquisitions be reviewed by a committee, but has given no thought at all to how members would be selected for the committee, what their qualifications would be, nor the least inkling of what criteria the committee would use to make their decisions.

What these censors are asking for is the right to implement their personal, idiosyncratic prejudices as public policy. They are demanding a right to be capricious.

Even smaller-scale challenges, focused on as little as one title, can be surprisingly vague.  At first glance it might appear otherwise, because the challenger will say something like, “this book shouldn’t be used in the classroom because it contains the F-word,” or “this book shouldn’t be in a public library because it encourages homosexuality,” etc. These may sound specific, and perhaps in comparison to the larger-scale book challenges, they are.  But they still lack that critical detail: thinking in terms of process and procedure. If one book should be removed or restricted for containing a certain word or theme, should all such books be censored?  Can a book be censored because such a word or idea appears once, or does it have to have more than one?  How many times?  How will you measure?  If we apply the rule you’re developing, will it really censor all the books you want to censor, but leave uncensored all the books you think should be unrestricted?   What kind of library collection or classroom curriculum will your rules leave us with?

All of that, of course, is without even beginning to consider whether or not the proposed restrictions are even remotely legal. They rarely are. 

Click Here to see a PDF of the unanimous decision, known as Fox Television Stations, Inc. v. FCC, by the United States Court of Appeals for the Second Circuit (New York).


  1. Great! I don't see the FCC winning that appeal if they try. Dealing with censors feels like a carousel most of the time, glad to see some action.

    How do you feel about the pro-censor "If you wouldn't read this book to a child out loud, why would you let them read it privately?" argument? It usually refers to young adult books. I disagree with it, and I know why, but I can't seem to put the words together to explain properly.

  2. I don't the FCC could win an appeal on this one either. They're going to have to rewrite the policy more narrowly and carefully.

    You scenario: Are we talking about an adult reading out loud to a young child, or to a teenager, and is the adult someone with parental authority over that minor? And are we talking about one minor or a group.

    "What you wouldn't read out loud" is not a valid criteria for deciding what books a library can have or who can have access to them, because there are many different situations in which a reader might not to want to read out loud something that is perfectly legitimate literature. Some adults, for example, would hesitate to read a religious text to a mixed group, either of adults or minors, for reasons that have nothing to do with the foul language, violence, crime, or sexual content.

    People have a right to choose their own reading, and with some limitations even minors have that right as a matter of law. A personal choice to read or not read something is different from one person reading to another.

    If you propose a more specific scenario, I might be able to give a more detailed response.

  3. Thank you for that, I was stuck for words.

    Any adult reading a young adult book(with "controversial" content, e.g. sexuality) to a single young adult seems to be the most common scenario. Apologies for being vague, I'm so used to people calling teenagers "children" I did it myself, even though I disagree greatly. On a blog site I read an argument based on this raged on for weeks, that's what got me thinking.

    Agreed, Harlequin romance novels are perfectly legal and appropriate for adults, but I would be uncomfortable reading them out loud. It probably shouldn't be awkward, but it is.

  4. Thought this may be of interest to you: