Court Second-Guesses Nicole Richie's Indecency

Right back at ya, FCC.

On Monday, a federal appeals court threw out two indecency rulings the Federal Communications Commission leveled at Fox last year, handing the case back to the government agency for reconsideration.

In its opinion, the U.S. 2nd Circuit Court of Appeals called the FCC's decision, which stated that an impromptu use of a profanity on broadcast TV was a finable offense, "arbitrary and capricious" and inconsistent with prior rulings.

The case, which involved separate incidents during Fox's airings of the 2002 and 2003 Billboard Music Awards, was returned to the FCC where, the court hopes, the agency will attempt to provide a "reasoned analysis"—if at all possible—for its crackdown on swearwords that are uttered without a broadcaster's permission.

Some of the FCC's current policy explanations, the court stated, are "divorced from reality."

In November, the FCC upheld its decision that Cher saying "f--k 'em" in 2002 in reference to her critics and Nicole Richie asking, "Have you ever tried to get s--t out of a Prada purse? It's not so f--king simple," in 2003, were both indecent occurrences. Fox wasn't slapped with any fines because, according to the FCC, the slip-ups occurred before the agency had decided that the F-word was a big no-no, even if being used as an adjective.

At the same time, however, the communication watchdogs cleared CBS' The Early Show for a guest's use of the word "bulls--t," because it was said during a news interview, and ABC for multiple uses of the same word spread out among five episodes of NYPD Blue, because the drama aired after 10 p.m. (The FCC relaxes its indecency rules for broadcast television between 10 p.m. and 6 a.m.)

But now the FCC is going to have to reexamine its take on Cher and Richie's verbal faux pas, as well.

The court's ruling is "disappointing to me and to millions of parents and concerned citizens across the land," but "doesn't change the FCC's legal obligation to enforce the indecency statute," FCC Commissioner Michael Copps said in a statement.

"So any broadcaster who sees this decision as a green light to send more gratuitous sex and violence into our homes would be making a huge mistake. The FCC has a duty to find a way to breathe life into the laws that protect our kids."

Fox Broadcasting, meanwhile, is on board with the opinion, of course, with the decision coming after an increasingly heated battle between the four major networks and the FCC over what constitutes indecency, the first shot of which was fired when Janet Jackson had an unfortunate wardrobe malfunction during the 2004 Super Bowl.

"We are very pleased with the court's decision and continue to believe that government regulation of content serves no purpose other than to chill artistic expression in violation of the First Amendment," read a statement issued by Fox.

"Viewers should be allowed to determine for themselves and their families, through the many parental control technologies available, what is appropriate viewing for their home."

Similarly, Judge Rosemary Pooler, who authored the court's opinion, wrote that all speech included in the FCC's indecency policy falls under the protections of the First Amendment.

"With that backdrop in mind, we question whether the FCC's indecency test can survive First Amendment scrutiny," Pooler wrote. "For instance, we are sympathetic to the networks' contention that the FCC's indecency test is undefined, indiscernible, inconsistent and consequently unconstitutionally vague."

Moreover, "the Supreme Court has cautioned against speech regulations that give too much discretion to government officials," she wrote.