WASHINGTON – In a rebuke of the Bush-era crackdown on foul language on broadcast television and radio, a federal appeals court Tuesday struck down the government’s near-zero-tolerance indecency policy as a violation of the First Amendment protection of free speech.

The ruling is a major victory for the broadcast TV networks, which jointly sued the Federal Communications Commission in 2006.

The case was triggered by unscripted expletives uttered by U2’s Bono, Cher and Nicole Richie on awards shows earlier in the decade, and the court’s decision calls into question the FCC’s regulation of foul language and other indecent content on the public airwaves.

“It does make it much harder for the FCC to regulate this area,” said Eugene Volokh, a University of California, Los Angeles law professor who specializes in First Amendment law.

A three-judge panel of the 2nd U.S Circuit Court of Appeals did not have the power to strike down the 1978 Supreme Court decision that affirmed the FCC’s right to police the airwaves for objectionable content.

But it reversed the aggressive stance the agency took starting in 2004 that found even a slip of the tongue that got by network censors was a violation subject to fines for the stations that aired it.

The court said that policy on so-called fleeting expletives was “unconstitutionally vague” and created a “chilling effect” on the programming that broadcasters chose to air.

 


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