Fox Television Stations, Inc. v. FCC

On July 13^th 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).