Ready for some cool legal history on the FCC's indecency policies? Well, maybe not cool, exactly. But definitely interesting.
As we've mentioned before, Future of Music Coalition has issued briefs in important court cases regarding the FCC's "vague and arbitrary" indecency policies, arguing that they have a chilling effect on creation and lead to broadcasters shying away from airing worthwhile content for fear of triggering massive fines. For instance, we've heard that many PBS affiliates were afraid to air the original version of Ken Burns' acclaimed documentary The War, for fear that it would result in a punitive response from the FCC. We believe that artists have a right to free speech and expression and that they actually benefit from exposure to challenging and at times even controversial art.
But back to the history lesson.
Back in 2002 and 2003, the FCC decided that "vulgar expletives" uttered by Cher and Nicole Richie during live Fox broadcasts of the Billboard Music Awards were indecent and violated community broadcasting standards. In 2004, the FCC adopted a policy that profanity referring to sex or excrement is always indecent. An official policy was put in place after a January 2003 incident at the Golden Globes awards, where U2 frontman Bono uttered what's come to be known as a "fleeting fuck." The FCC considered that this word, even if a slip of the tongue, "inherently has a sexual connotation" and could trigger fines. The whens wheres and amount of these fines were not articulated. Hence the "vague and capricious" argument that groups like FMC and the Center for Creative Voices in Media (CCV) have made in legal briefs filed on our behalf by Andy Schwartzman of Media Access Project.
Fox Television Stations and other broadcasters challenged the policy in a case that went all the way to the Supreme Court. The Supremes decided that the FCC's policy wasn't vague or capricious, but refused to issue a ruling on the constitutionality of the policy, which the broadcasters argue violate their First Amendment rights. The Supreme Court kicked the case back to the Second District Court of Appeals, saying they were free to rule on the grounds of constitutionality.
Still with us?
Flash forward to yesterday (Wednesday, Jan 13), when oral arguments in the case were heard in a New York City courtroom. Apparently the judges were pretty adamant about the fact that they believed the FCC' policies are arbitrary and capricious and undermine the broadcasters' constitutional rights. Here's a snippet from an in-depth article at Broadcasting and Cable:
"This was a slaughter," said Andrew Schwartzman of Media Access Project, which represents creative types in the TV and music industries (the Coalition for Creative Voices in Media and the Future of Music Coalition], which are supporting broadcasters' fight against the crackdown.
And apparently, it kinda was.
[Judges] Pooler and Leval were the most antagonistic to the government's position. Both used the words, while Hall used "s-word" and "f-word." But all three had constitutional issues.
"The commission's arguably contradictory and bewildering ruling between words that are and words that are not [indecent] seems to me to create a kind of bewildering vagueness that arguably results in a chill vastly beyond anything the Supreme Court ruled on....," said Judge Leval, which pretty much summed up the tenor of the Judges' probing. Philips got served up a lot of fat pitches to hit, while Stewart found many a hardball coming his way.
ABC News has an interesting take on the arguments, as well.
It looks like the Second US Circuit Court of Appeals may ultimately upend the FCC's current indecency policy, which we think is a good thing.
You can watch the C-SPAN coverage of the entire proceeding here.