Second Circuit Strikes Down FCC Indecency Policy

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The current decision concludes that the FCC’s changed policy violates the First Amendment, as it is too vague to alert broadcasters to its requirements and therefore has an unacceptable chilling effect upon legitimate free speech.

The Court found that the FCC’s indecency test fails to provide a clear standard by which broadcasters can predict what speech is covered and therefore forces broadcasters to avoid potentially offensive programming rather than risk massive fines or license revocation.

At least until the Court’s mandate is issued after 45 days, the FCC’s current indecency policies remain in effect. By then, the FCC may have decided whether to take further appeals to the entire Second Circuit or to the Supreme Court. In the meantime, pending indecency complaints are likely to continue to be held in abeyance.

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