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Federal appeals court tosses out FCC's curse word policy

A federal appeals court tossed out Tuesday a government policy that can lead to broadcasters being fined for allowing even a single curse word on live television, concluding that the rule was unconstitutionally vague and had a chilling effect on broadcasters.

The 2nd U.S. Circuit Court of Appeals in Manhattan struck down the 2004 Federal Communications Commission policy, which said profanity referring to sex or excrement is always indecent.

"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 appeals court wrote. "To place any discussion of these vast topics at the broadcaster's peril has the effect of promoting wide self-censorship of valuable material which should be completely protected under the First Amendment," it added.

The court said the FCC might be able to craft a policy that does not violate the First Amendment.

In a statement, FCC chairman Julius Genachowski said: "We're reviewing the court's decision in light of our commitment to protect children, empower parents, and uphold the First Amendment."

Carter Phillips, a Washington lawyer who argued the case for Fox Television Stations Inc., called the decision satisfying. He said the court had "sent the FCC back to square one to start over" by not only tossing the fleeting expletive policy but also a broader indecency policy as unconstitutionally vague.

The FCC's fleeting expletive policy was put in place after a January 2003 NBC broadcast of the Golden Globes show. Offense was taken at a phrase uttered by U2 lead singer Bono. The FCC said the F-word in any context "inherently has a sexual connotation" and can lead to enforcement.

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