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July 14, 2010 by · Leave a Comment 

In a unanimous decision, a three-judge U.S. appellate court on Tuesday struck down an FCC rule that allows it to fine broadcasters for using “patently offensive” language on live television. Ruling that the FCC policy violates the First Amendment, the 2nd U.S. Circuit Court of Appeals in Manhattan said: “By prohibiting all ‘patently offensive’ references to sex, sexual organs and excretion without giving adequate guidance as to what ‘patently offensive’ means, the FCC effectively chills speech, because broadcasters have no way of knowing what the FCC will find offensive.” (The case in itself posed delicate issues of taste that the court — and reporters covering its ruling — grappled with. For example, the Washington Post noted that “the judges said the FCC isn’t clear enough on what’s permissible and what’s not. In one instance, the FCC concluded that uttering a term to describe bull excrement in an episode of the police drama NYPD Blue was offensive. But apparently the expression for kissing another’s derriere is permissible, the court noted.”) Reacting to the decision, Timothy Winter, president of the Parents Television Council, which has spearheaded indecency protests — including mobilizing thousands of letterwriters who flooded the FCC with complaints about the Janet Jackson “wardrobe malfunction” — told the Los Angeles Times: “What this ruling is saying is that networks are free to no longer have a mute button — and that’s unfortunate.” But Dennis Wharton, a spokesman for the National Association of Broadcasters, called such reaction “ludicrous,” adding, “If we wanted to do that we could do that from 10 p.m. to 6 a.m.,” when the FCC rules on indecency don’t kick in.