Last week, the 2nd Circuit Court of Appeals stated that the FCC had been too vague is banning all “sexual or excrement” based swearing, while approving many of the same words on an individual basis. The case, brought by Fox and other media stations in 2006, sought to eliminate fines levied for instances of swearing during live events. The Court agreed with the media, stating that a blanket ban provided a chilling effect on speech, and was too vague to be adequately followed by broadcasters.
The FCC still has the power to draft a rule which will be less vague and easier to follow, and which will punish live programs that feature cursing. This ruling does not change the FCC’s power to regulate scripted swearing, or to provide guidelines for appropriate language
What does this have to do with video games? The FCC ostensibly has some power over everything that is broadcast, including online trash-talking and other media events. Every game published recently with any kind of online capability has generally had a splash screen which states that “online interactions are not rated by the ESRB.” If this ruling stands, then fleeting swearing will be the problem of the speaker, and not of the forum, as it should have been from the start. Machinima, or recording and splicing in-game behavior to make an independent video, just got a little easier to produce.
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