You probably got the memo that Future of Music Coalition supports artists' access to media technologies (like radio and the internet) and the idea that creative expression has value. But did you know we also stick up for musicians' right to free speech?

'Cause we definitely do.

In fact, we recently filed a brief at the Second Circuit Court of Appeals that once again takes the Federal Communications Commission to task for its "vague and arbitrary" indecency policy. How does this translate to musicians' speech? Well, firstly, like all Americans, artists in the U. S. of A. have a right to a diversity of voices and expression on the public airwaves. Sadly, in a highly consolidated media environment, this promise isn't always fulfilled. Second, musicians (and again, all Americans) are granted the right to free speech. And yes, that does cover creative expression.

So what does this hi-falutin' (and incredibly important) Constitutional stuff have to do with the FCC? Think of it this way: as the agency tasked with regulating the public airwaves, the FCC has the authority to make some calls about what constitutes "indecent" expression on your TV or radio. Unfortunately, the Commission's current policy is extremely vague and seemingly arbitrary. This has a chilling effect on creativity, as artists effectively struggle to conform to an unknown "standard."

Example: example, Ken Burns's recent documentary, "The War," was aired in two different versions to satisfy PBS affiliates worried about possible FCC sanctions. Creators are left guessing what constitutes indecent material, which leads to self-censoring and ultimately deprives the public of access to a lot of potentially important (and even entertaining) work.

FMC said as much in a brief filed at the Second Circuit Court of Appeals in July 2008. (This was the "NYPD Blue" case; read our previous FutureBlog breakdown here.)

On September 16, 2009, we filed another brief at the Second Circuit Court of Appeals. This new brief — filed by Andrew Schwartzman of Media Access Project on behalf of FMC and the Center for Creative Voices in Media (CCV) — argues that the FCC's decision to censor Fox Television for "fleeting expletives" violates the First Amendment right to freedom of speech. You know, like when Bono said "this is fucking brilliant" at the Golden Globes? Random f-bombs aside, the crux of the problem is the vagueness of the policy. As we state in our brief:
How is a writer or musician to reconcile the FCC's acceptance of repeated use of strong expletives in Saving Private Ryan with the FCC's disapproval of the culturally contextual use of milder expletives in a documentary on the Blues music?
Good question.

Another major problem is the consolidated media marketplace, where decisions are more often made at the national, rather than local level. We've long said that the loss of localism due to media consolidation is at least partly responsible for the increase in complaints regarding "offensive" material. National corporate owners are unable to understand, much less effectively respond to, local sensitivities.

There is another reason for the filing that isn't directly related to indecency policy. It's a bit complicated, but Matthew Lasar at Ars Technica does a good job of explaining the situation.

Here's our own nutshell version: in this brief, we also wanted to ensure that a court ruling could not be used to undercut a wide range of spectrum policy decisions that currently work to ensure diversity and localism on the airwaves. The brief explains the importance of ruling on first and fifth amendment grounds — as the FCC's policies violate the Constitution by chilling artistic expression — as well as the importance of NOT addressing the scarcity rationale, as it is irrelevant to indecency regulation and could upset other important spectrum-related policy decisions.

See, we told you it was a bit complicated!

The big takeaway here is that FMC will continue to advocate for freedom of speech and creativity for the benefit of artists everywhere who depend on the public airwaves to not only disseminate their work, but also to have access to the variety of voices and creative expression that makes up American culture.

In other words, we've got your back on speech.