TV and music content creators and their broadcast distributors are on the same page when it comes to opposing the FCC’s indecency enforcement regime, but differ on how the Supreme Court should approach its review of those regs. read more
THELEDE: Media Access Project, a public-interest law firm, filed a brief on Thursday asking the Supreme Court to strike down the Federal Communications Commission’s indecency policy as unconstitutionally vague.
The Supreme Court already ruled in the case, upholding the FCC’s fine on Fox for airing expletives during the Billboard Music Awards in 2002 and 2003. But the court only addressed whether the FCC’s fine was arbitrary, and sent the case back to a lower court to determine the policy’s constitutionality. That lower court struck down the FCC’s policy as violating the First Amendment, and the Supreme Court has agreed to re-hear the case. read more
This case is based on televised expletives aired on the 2002 and 2003 Billboard Music Awards broadcasts. Originally, the FCC determined that the utterances, whether intentional or not, were indecent after a slew of complaints were sent to the commission. During such an evaluation, the FCC queries whether the utterances “depict[ed] sexual or excretory organs or activities.” Fox appealed the ruling, and the Supreme Court held that the FCC’s ruling should stand because it was not “arbitrary and capricious” (in non-legalese that just means the FCC didn’t act crazy). When the Supreme Court sent the ruling back down to the Second Circuit Court of Appeals, those New York-based justices declared the indecency policy so vague that it unconstitutionally restrained speech. On its second trip up to the highest of high courts, we should get a final answer as to whether the FCC’s indecency policy will stand.
Like FMC’s previous amicus briefs from July 2008 and September 2009, this filing demonstrates the “vague and arbitrary” nature of the FCC’s current indecency policy. The result of this policy has been a chilling effect on creativity on the public airwaves, due to broadcasters’ fears of getting fined for airing “offensive” content. For example, Ken Burns’ WWII 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 (and artists) of access to a variety of worthwhile content.
This post was authored by FMC Policy Consultant Adam Holofcener.
As the infamous Eminem once rapped, “The FCC won’t let me be.” Don’t worry, Em — the Federal Communications Commission isn’t singling you out. In fact, the FCC’s indecency policy applies to everyone who would be seen or heard on broadcast media.
The FCC’s policy is intended to keep content relatively “clean” between the hours of 6 am and 10 pm. A worthy goal, but how does it work in practice? Turns out not very well. As several courts have found, the FCC’s current indecency policy is unreasonably vagueand can lead to a chilling of creative expression. Now, it’s once again the Supreme Court’s turn to weigh in. read more