On the day the High Court here has delivered a blow against the Foxification of our media, in the United States Fox TV (together with the big networks, CBS, ABC and NBC among others) has had a genuine legal victory. The Federal Court of Appeals, 2nd Circuit, has ruled that the policy of the FCC (the American equivalent of Ofcom) on indecent words in programmes is “unconstitutionally vague” and so breaches the 1st Amendment to the Constitution. Here’s a news report about the case from the New York Times. It’s likely now to go to the US Supreme Court.

It’s interesting as a contrast to Jon Gaunt’s case – he was subjected to no sanctions whatever by Ofcom, whereas in today’s American case, the FCC had power to impose massive fines on broadcasters, in theory at least for merely “fleeting expletives” uttered by people other than presenters.

It’s interesting in terms of constitutional rights, too, because the vagueness doctrine corresponds to the requirement under the European Convention on Human Rights that interferences with rights must be prescribed by law or in accordance with law – meaning among other things that citizens must be able to predict with reasonable confidence how the restrictions apply, so that they can regulate their conduct. That was the basis of the House of Lords finding in favour of Debbie Purdy in the context of the right to respect for private life.

The Court of Appeals here felt that the FCC’s policy was too broad and too arbitrarily applied:

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. 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’ll be interesting to see if the Supreme Court upholds this judgment. Even if it does, it will not prevent the FCC from framing a new policy, perhaps spelling out a list of  words that can be “presumed forbidden” subject to exceptions.