Digitus Impudicus: The Middle Finger and the Law - Wired

2008] Digitus Impudicus 1445
third factor, the Commission stated that it would consider the social,
scientific, or artistic value of the material. 314 If a broadcast repeatedly
dwells on a depiction of sexual or excretory organs or activities or
appears to have little value other than “shock value,” the Commission
is more likely to find that the material is indecent. 315 In the case of
Saving Private Ryan, the Commission concluded that the offensive
language was “integral to the film’s objective of conveying the horrors
of war through the eyes of . . . soldiers, [who were] ordinary
Americans placed in extraordinary situations,” and that it was not
used to “pander, titillate, or shock.” 316 In that case, the Commission
did not fine the broadcaster for airing the f-word on television.
The confused nature of the FCC’s current regulation of the f-word is
highlighted by one recent case, which calls the controlling nature of
Golden Globes II into question. In Fox v. FCC, 317 the U.S. Court of
Appeals for the Second Circuit found the FCC’s “180-degree policy
change” regarding the use of “fleeting expletives” to be “arbitrary and
capricious.” 318 The court held that the policy change made in Golden
Globes II and applied in this case represented a “significant departure”
from previous FCC decisions, and that the FCC had failed to articulate
a “reasoned explanation” for such a departure, as required under the
Administrative Procedure Act. 319 (The court noted that, applying the
standard the Commission had established in Golden Globes II, the FCC
found Fox’s broadcast of two instances of fleeting and isolated uses of
expletives 320 indecent and profane, possibly sufficient to warrant
forfeiture in future cases. 321 )
314 Id.
315 See id. at 4510-11.
316 Id. at 4512-13.
317 489 F.3d 444 (2d Cir. 2007), cert. granted, 2008 U.S. LEXIS 2361 (U.S. Mar. 17,
2008) (No. 07-582).
318 Id. at 446-47, 455.
319 See id. at 446-47, 456 (holding that FCC was free to change rulings but needed
to provide reasonable explanation). But see Protecting Children from Indecent
Programming Act, S. 1780, 110th Cong. § 2 (2007) (authorizing FCC to regulate
single words or images as indecent programming).
320 489 F.3d at 452-54 (explaining that Cher’s statement, “People have been telling
me I’m on the way out every year, right? So fuck ’em,” at 2002 Billboard Music
Awards and Nicole Richie’s statement, “Have you ever tried to get cow shit out of a
Prada purse? It’s not so fucking simple,” at 2003 Billboard Music Awards were
indecent and profane, while dismissing claim against NYPD Blue on procedural
grounds and finding that use of expletive on The Early Show was acceptable since it
occurred during “bona fide news interview”).
321 Id. at 453 (noting that forfeiture does not apply retrospectively because
instances in Fox occurred before Golden Globes II was decided).