NEW YORK-New standards adopted by the Federal Communications Commission to censor “indecency” on the airwaves are overly vague and unconstitutional, a coalition of 20 free speech organizations, community broadcasters, filmmakers, performers and writers argued in a legal brief filed today.
In the friend-of-the-court brief, the groups urged the Second Circuit Court of Appeals to overturn an FCC ruling issued earlier this year that applied new standards for censoring indecency and profanity to complaints received between 2002 and 2005. The groups urged the court to throw out the FCC’s censorship scheme altogether, arguing that “the FCC’s efforts to regulate in this area have proven to be constitutionally unworkable.”
“The FCC's new and ever-shifting rules censoring ‘profanity’ and ‘fleeting expletives’ on the airwaves have no place in our free, diverse and pluralistic culture,” said Marjorie Heins, Coordinator of the Free Expression Policy Project at the Brennan Center for Justice, who prepared today’s brief. “The FCC’s attempted distinctions among various common words are capricious and irrational. The whole indecency and profanity regime should be struck down.”
In today’s legal brief, the groups say that the FCC standards are not only overly broad, but inconsistent. For example, the FCC ruled last year that broadcasts of the fictional film Saving Private Ryan were not indecent or profane because the fleeting expletives were “integral to the film’s objective,” yet, supposedly applying the same standards, it condemned Martin Scorsese’s PBS documentary The Blues for including similar fleeting expletives. Substituting their judgment for Scorsese’s, the FCC commissioners said that the expletives were artistically necessary in Saving Private Ryan but not in The Blues.
“The FCC’s arbitrary censorship system is no more tolerable than allowing government agents to tear pages out of library books,” said Steven R. Shapiro, National Legal Director of the American Civil Liberties Union, which joined today’s brief. FCC censorship only applies to the airwaves.
The new rules have already caused some non-commercial stations to self-censor because they cannot afford to pay the enhanced legal fines that may now be imposed by the FCC. PBS recently bleeped soldiers’ language from the war documentaries A Soldier’s Heart and Return of the Taliban, and from Frontline’s The New Asylums. Language in PBS’s documentary on terrorism in America, The Enemy Within, was purged even though it documented the particular words used by an informant to threaten a suspect. Rocky Mountain PBS canceled the historical documentary Marie Antoinette because it included sexually suggestive drawings.
The case before the Second Circuit, Fox Television v. FCC, began after the FCC issued an “Omnibus Order” in March condemning ten programs as indecent or profane, and exonerating more than a dozen others. Four rulings - against an episode of NYPD Blue, The Early Show, and two Billboard Music Awards broadcasts - were not accompanied by fines, and therefore could be directly appealed to the court. In the NYPD Blue case, the agency said that the word “bullshit” was not permissible, but allowed the word “dickhead.” After the appeals court allowed the FCC’s request to reconsider its rulings, the Commission changed its position on NYPD Blue and The Early Show but reaffirmed the rulings against the two Billboard programs.
Among the artists’ groups represented in today’s brief are the Directors Guild of America (DGA), Screen Actors Guild (SAG), Writers Guild of America East (WGAE), Writers Guild of America West (WGAW), PEN American Center and the American Federation of Television and Radio Artists (AFTRA).
“Artists need to know that they can exercise their First Amendment rights without fear of sanctions imposed by the government,” said Thomas R. Carpenter, General Counsel and National Director of Legislative Affairs for AFTRA. “A vague and ill-defined standard of decency is a threat to the freedom of expression that AFTRA members and all Americans hold dear.”
In addition to the guilds, the Brennan Center, the ACLU and PEN American Center, today’s brief was joined by American Booksellers Foundation for Free Expression, Creative Coalition, Film Arts Foundation, First Amendment Project, International Documentary Association, Minnesota Public Radio|American Public Media, National Alliance for Media Arts and Culture, National Coalition Against Censorship, National Federation of Community Broadcasters, New York Civil Liberties Union, Re:New Media, and Working Films.
Today’s brief is online at: www.fepproject.org/courtbriefs/FoxvFCC.pdf