NY Times Extends Bad Reporting to Judical Decisions

I am not a lawyer but I like to read judicial opinions because I often can follow the logic. It seems clear that the New York Times seriously distorted the argument in the decision (pdf) which focused on the capricious nature of the decision.

The decision says that since it agrees with the first argument of the networks, that the FCC flipped long standing policy without giving any explanation, their other arguments don't have to be part of the decision.

We find that the FCC's new policy regarding "fleeting expletives" represents a significant departure from positions previously taken by the agency and relied on by the broadcast industry. We further find that the FCC has failed to articulate a reasoned basis for this change in policy. Accordingly, we hold that the FCC's new policy regarding "fleeting expletives" is arbitrary and capricious under the Administrative Procedure Act.

The Times on the other hand seems to be talking to "network executives and top officials at the Federal Communications Commission instead of reading the decision.

June 5, 2007

Court Rebuffs F.C.C. on Fines for Indecency


    WASHINGTON, June 4 -- If President Bush and Vice President Cheney can blurt out vulgar language, then the government cannot punish broadcast television stations for broadcasting the same words in similarly fleeting contexts.

    That, in essence, was the decision on Monday, when a federal appeals panel struck down the government policy that allows stations and networks to be fined if they broadcast shows containing obscene language.

    Although the case was primarily concerned with what is known as "fleeting expletives," or blurted obscenities, on television, both network executives and top officials at the Federal Communications Commission said the opinion could gut the ability of the commission to regulate any speech on television or radio.

    Kevin J. Martin, the chairman of the F.C.C., said that the agency was now considering whether to seek an appeal before all the judges of the appeals court or to take the matter directly to the Supreme Court.

    The decision, by a divided panel of the United States Court of Appeals for the Second Circuit in New York, was a sharp rebuke for the F.C.C. and for the Bush administration. For the four television networks that filed the lawsuit -- Fox, CBS, NBC and ABC -- it was a major victory in a legal and cultural battle that they are waging with the commission and its supporters.

    Under President Bush, the F.C.C. has expanded its indecency rules, taking a much harder line on obscenities uttered on broadcast television and radio. While the judges sent the case back to the commission to rewrite its indecency policy, it said that it was "doubtful" that the agency would be able to "adequately respond to the constitutional and statutory challenges raised by the networks."

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