Post by FMC Legal Intern Satie Munn

OK, gang: it’s time to get indecent (again).

Huh? Well, as we reported last summer, the Supreme Court of the United States decided in FCC v. Fox that the Federal Communication Commission’s indecency policy was too vague and violated broadcasters’ due process rights by not providing “fair notice” of clear rules. FMC and the Center For Creative Voices in Media filed a brief in the case, arguing that the FCC regulation was applied so arbitrarily that it chills creative expression.

And, lo and behold, we won. Now, a year later, we — along with the rest of the interested public — get to tell the FCC what we think their indecency policy should be. Which we just did.

In accordance with FCC rulemaking procedures, the agency is seeking public comment on recommended changes to its indecency policy. Unfortunately, some groups have disseminated significant misinformation to the public about the proposed policy change, including many rumors that the FCC plans to “drop its ban,” allowing television and radio stations to freely broadcast profanity and nudity over public airwaves. Taking the rumors even further, some even suggest that the FCC wants to turn broadcast television into a den of iniquity by forcing children to watch rampant explicit material. These articles have already elicited tens of thousands of comments from the public urging the FCC to ‘save our children!’ Although these submissions make for an interesting read, the truth is much, much tamer.

The FCC v. Fox dispute originated from incidents during the nationally televised 2002 and 2003 Billboard Music Awards in which two presenters, Cher and Nichole Richie, “dropped the F-Bomb.” To be clear, while most consider the F-word explicit, such use during a live broadcast is considered “fleeting” — where a single profane word or phrase slips out on the airwaves. The FCC’s policy only forbade “deliberate and repetitive use [of expletives] in a patently offensive manner” (expletives referring to “sexual or excretory activity or organs”). However, after a slew of complaints, the FCC fined Fox, claiming that the single use of a vulgar word was indecent, whether intentional or not. But the FCC never changed their policy to reflect this position.

The Supreme Court concluded that the FCC’s fines against Fox were invalid because the Commission’s regulations were, at the time, “unconstitutionally vague.” However, the Court also reaffirmed the FCC’s authority to regulate broadcast television on behalf of the public interest without violating the First Amendment. And now the FCC is trying to figure out how best to do that. Should fleeting expletives (or brief glimpses of nudity) be considered finable offenses or should the FCC maintain something like their current policy, requiring “deliberate and repetitive” use of expletives for a finding of indecency?

At this point you might ask, “Why should musicians care?” For starters, this policy applies to radio as well as TV. Broadcasters may be subject to a fine of up to $325,000 fine for each violation. If large-scale broadcasting companies like Fox can’t grok what is or isn’t indecent, what about small broadcasters? Furthermore, these hefty fines have a detrimental effect on noncommercial stations, and could even put them out of business. Our concern is the possibility of a protective, self-censoring response from stations who are worried about their potential liability, or artists choosing to refrain from potentially provocative — but no less culturally valuable — expression.

An overly prohibitive indecency policy, or an extremely vague policy, will chill creative expression. Expletives are often used in an artistic work to serve a legitimate informational or communicative purpose due to their emotive power. If creators feel compelled to self-censor, the public could be deprived of challenging and important expression; the type of speech the First Amendment was designed to protect.

While FMC respects the purpose of the FCC’s indecency policy, we want to ensure that artists feel welcome to create challenging material, free of oppressive censorship that may distort their intended meaning. Or, at least, we want stations and artists to be clearly aware of their potential liability if they plan to air material containing expletives. Either way, diversity of expression is important, particularly with regard to music.

Although the FCC’s arbitrary policy impacts artistry, rampant consolidation in station ownership as a result of the 1996 Telecommunications Act has also limited opportunities for communities to benefit from a range of expression. In our FCC rulemaking comment, FMC also emphasizes that local communities are the best arbiters of indecency, in accordance with their mores. The FCC should adopt a policy that encourages localism, given that localism in broadcasting would result in greater diversity of expression. So, while we commend the FCC for accepting public comment regarding its indecency policy, and we have continued to participate in this important conversation, FMC recognizes that the fight to protect speech can take on many forms. Kind of like musical expression.