ACLU Letter to the House Expressing Concerns about H.R. 3717, the Broadcast Decency Enforcement Act of 2004

The Honorable Joe L. Barton
Chairman, House Energy & Commerce Committee

The Honorable John D. Dingell
Ranking Member, House Energy & Commerce Committee

Re: H.R. 3717, the Broadcast Decency Enforcement Act of 2004

Dear Chairman Barton and Ranking Member Dingell:

We are writing to express our concern about H.R. 3717, the Broadcast Decency Enforcement Act of 2004. The bill would dramatically increase fines for obscene, indecent, or profane broadcasts, sending a widening chill into the atmosphere of free expression protected by the First Amendment.

The heart of our objection to the bill is that it relies upon the FCC’s definition of “”indecency”” which is already vague.[1] Because of the vagueness, speakers must engage in speech at their peril, guessing what the FCC will determine to be prohibited. Increasing fines merely exacerbates the problem, particularly for small broadcasters. Rather than face a potentially ruinous fine, smaller broadcasters are more likely to remain silent.

Under H.R. 3717, guessing incorrectly can have important ramifications for a broadcaster, including huge fines and possibly loss of its broadcasting license. Vague laws and interpretations create traps for broadcasters because they are unsure what conduct or speech will constitute indecency. Rather than have broadcasters act at their peril, the law prefers reasonable notice of what conduct will give rise to legal consequences, so that the speaker may act accordingly. Vagueness results in chilling of communications that may well NOT be indecent or profane, simply because the cost to the broadcaster of being wrong is too great. Vagueness encourages silence instead of robust debate. “”Uncertain meanings inevitably lead citizens to ‘steer far wider of the unlawful zone’ . . .than if the boundaries of the forbidden areas were clearly marked.””‘[2] The bottom line is that broadcasters enjoy First Amendment protection. The uncertainty inherent in the definition (or lack thereof) of “”indecency”” will inevitably lead broadcasters to avoid certain speech because that speech may later be deemed indecent, and the broadcaster faces tremendous liability because of the increase in the fines provided for in H.R. 3717.

FCC v. Pacifica Foundation does not provide unlimited authority to define and punish broadcast indecency. Furthermore, subsequent developments make it questionable whether Pacifica has any continued vitality.

In FCC v. Pacifica Foundation, 438 U.S. 726 (1978), the Supreme Court allowed some limited regulation of an allegedly indecent broadcast (George Carlin’s “”Seven Dirty Words”” Monologue). Great caution, however, should be exercised in attempting to rely upon this 25-year-old case as precedent for deciding what broadcasts are indecent or the ability to impose draconian penalties.

Initially, it is important to note that, unlike obscenity, indecent speech is protected under the First Amendment. Id., at 746 (“”Some uses of even the most offensive words are unquestionably protected. . . .Indeed, we may assume, arguendo, that this monologue would be protected in other contexts.””) The ability to regulate indecency in the broadcasting medium is an exception rather than the general rule. In many other contexts, the Supreme Court has invalidated efforts to restrict indecency.[3] In Pacifica, the Court applied a slightly different standard for broadcasting, but that decision cannot be read too broadly.

First, the decision was a fragmented one (5-4) that did not approve a particular standard for indecency, or uphold a substantive penalty against the licensee.[4] Since Pacifica, the Court has acknowledged that the FCC’s definition of indecency was not endorsed by a majority of the Justices, and has repeatedly described the decision as an “”emphatically narrow holding.””[5]

Second, the rationale for the Pacifica decision, that “”the broadcast media have established a uniquely pervasive presence in the lives of all Americans,””[6] is highly questionable twenty-five years after the decision.[7] Today we have cable television, the Internet, and satellite television, all competing with broadcast networks. Yet, the government can only impose limited content controls on the broadcast media. Paradoxically, full First Amendment protection now depends, literally, upon whether you are watching a broadcast channel or a cable channel.

Third, although technology has radically changed in the intervening years since Pacifica, society has also changed drastically. Gone are the days when a husband and wife could not even be shown in the same bed. This change in society has led to differing audience expectations and have contributed to different broadcast standards and practices. Whether that is seen as “”good”” or “”bad,”” it is a fact, and reflects changes in the contemporary community standards for the broadcast medium.

Last, and perhaps most importantly, the law itself has evolved since 1978. In Pacifica, three justices who joined the plurality opinion suggested “”indecent”” speech was subject to diminished scrutiny because it was “”low value”” speech.[8] Approximately twenty-two years later, the Supreme Court rejected that notion, holding that “”indecent”” speech is fully protected under the First Amendment, and not subject to diminished scrutiny as “”low value”” speech. The Court stressed that “”[t]he history of the law of free expression is one of vindication in cases involving speech that many citizens find shabby, offensive, or even ugly,”” and that the government cannot assume that it has greater latitude to regulate because of its belief that “”the speech is not very important.””[9] Additionally, the Court since Pacifica has invalidated government-imposed indecency restrictions on cable television, despite its “”pervasiveness.”” While Pacifica noted the pervasiveness of broadcast television as part of its rationale, the Court in striking such regulation in the cable television context found specifically that “”[c]able television broadcasting, including access channel broadcasting, is as ‘accessible to children’ as over-the-air broadcasting, if not more so.””[10] Thus, the rationale in Pacifica is undercut by the Court’s later decision. And, finally, and most importantly, in Reno v. ACLU, the Court for the first time subjected the indecency definition (in the Internet context) to rigorous scrutiny, and found it to be seriously deficient.[11] All of these later decisions undercut Pacifica’s rationale and raise serious questions about its vitality.

The Committee should not further compound the vagueness problem by attempting to regulate “”violence.””

We understand there may be an amendment proposed to allow the FCC to regulate “”violence”” or “”gratuitous violence”” in the media. We urge you to reject any such amendment, as any definition of violence will undoubtedly be too vague to provide any guidance to broadcasters.

Parents are justifiably concerned that their children learn their values. Parents are, of course, the ones most suitable to make the determination of what is and is not in their children’s best interest. The government may assist parents and children in learning about various aspects of the media – for example, funding media literacy courses that teach parents and children how to evaluate and analyze what they see. When, however, the heavy hand of government steps in to “”assist”” those parents in regulating media violence, constitutional problems abound. Moral and esthetic judgments are “”for the individual to make, not for the Government to decree, even with the mandate or approval of a majority.””[12]

“”Material limited to forms of violence is given the highest degree of First Amendment protection.””[13] In Winters v. New York, 333 U.S. 507 (1948), the Supreme Court invalidated a law that prohibited the distribution to minors of any publication “”principally made up of . . .accounts of criminal deeds, or pictures, or stories of deeds of bloodshed, lust or crime.””[14] Even though the Court saw “”nothing of any possible value to society in these magazines,”” the justices held that the material was “”as much entitled to the protection of free speech as the best of literature.””[15]

Shielding children from violence ignores reality and ill-prepares them for participation in a world that embraces violence: “”Violence has always been and remains a central interest of humankind and a recurrent, even obsessive theme of culture both high and low. It engages the interest of children from an early age, as anyone familiar with the classic fairy tales collected by Grimm, Andersen, and Perrault is aware. To shield children right up to the age of 18 from exposure to violent descriptions and images would not only be quixotic, but deforming; it would leave them unequipped to cope with the world as we know it.””[16]

If not all violence is bad, then any regulation must accomplish the gargantuan task of distinguishing between what is “”good”” violence from “”bad”” or “”gratuitous”” violence. The task is even more difficult, because, as the Federal Trade Commission noted in September, 2000, those who research the effects of media violence inconsistently define “”violence.””[17] If the researchers cannot concur on an objective definition, then how will any regulation provide truly objective definitions that please all parents?

It is simply impossible to constitutionally distinguish between “”good violence”” and “”bad violence.”” As the Supreme Court has stated, “”What is one man’s amusement, teaches another’s doctrine.””[18] Americans do not want the government to serve as their “”taste police.””

Conclusion

The indecency standard already suffers from vagueness, making it difficult for broadcasters to know what will result in sanctions. That uncertainty is heightened when the FCC itself has difficulty applying the standard. H.R. 3717, far from avoiding constitutional inquiry, exacerbates an already serious problem. The effect of the bill is to turn down the thermostat in an already chilly atmosphere, deterring speech that is constitutionally protected.

Adding “”violence”” to the definition of indecency, or otherwise regulating violence, raises a host of constitutional problems as well.

While we do not endorse H.R. 3717, it is nonetheless is a better alternative than H.R. 3687. H.R. 3717 may make a bad situation worse, but it at least does not suffer from creating even more constitutional problems.

Sincerely,

Laura W. Murphy
Director

Marvin J. Johnson
Legislative Counsel

Cc: Members of the House Energy & Commerce Committee

[1] Reno v. ACLU, 521 U.S. 844 (1997) was the first Supreme Court case to undertake a rigorous examination of the definition of “”indecency”” in the Communications Decency Act. By a 9-0 decision, the Court invalidated that portion of the statute, finding the definition to be vague and overbroad. The Communications Decency Act definition was essentially the same as that used by the FCC.

[2] Grayned v. City of Rockford, 408 U.S. 104, 109 (1972).

[3] Print medium: Butler v. Michigan, 352 U.S. 380, 383 (1957); See also Hamling v. United States, 418 U.S. 87, 113-114 (1974) (statutory prohibition on “”indecent”” or “”obscene”” speech may be constitutionally enforced only against obscenity); Film: United States v. 12 200-ft. Reels of Film,, 413 U.S. 123, 130 n.7 (1973); In the mails: Bolger v. Youngs Drug Products Corp. 463 U.S. 60 (1983); In the public forum: Erzoznik v. City of Jacksonville, 422 U.S. 205 (1975); Cable Television: United States v. Playboy Entertainment Group, Inc., 529 U.S. 803 (2000); the Internet: Reno v. ACLU, 521 U.S. 844 (1997).

[4] See Pacifica, 438 U.S. at 743 (plurality op.) and at 755-56 (Powell, J., concurring) (“”[t]he Court today reviews only the Commission’s holding that Carlin’s monologue was indecent ‘as broadcast’ at two o’clock in the afternoon, and not the broad sweep of the Commission’s opinion””). See also Carlin Communications, Inc. v. FCC, 837 F.2d 546, 559 (2d Cir. 1988) (“”[t]he Pacifica Court declined to endorse the Commission definition of what was indecent””); ACLU v. Reno, No. Civ. A. 96-963, 1996 WL 65464 at *3 (E.D.Pa. Feb. 15, 1996) (Buckwalter, J.) (“”it simply is not clear, contrary to what the government suggests, that the word ‘indecent’ has ever been defined by the Supreme Court””).

[5] Reno, 521 U.S. at 866-867, 870; Sable, 492 U.S. at 127; Bolger, 463 U.S. at 74.

[6] Paifica, 438 U.S. at 748.

[7] Chairman Powell has criticized as a “”willful denial of reality”” the Commission’s failure to reexamine the “”demonstrably faulty premises for broadcast regulation,”” including the claim “”that broadcasting is uniquely intrusive as a basis for restricting speech.”” Regarding this rationale for regulating the broadcasting medium, he has said “”[t]he TV set attached to rabbit ears is no more an intruder into the home than cable, DBS, or newspapers for that matter. Most Americans are willing to bring TVs into their living rooms with no illusion as to what they will get when they turn them on.”” Remarks by Commissioner Michael K. Powell, Willful Denial and First Amendment Jurisprudence, Media Institute, (Washington, D.C., April 22, 1998). The Chairman has explained that “”[t]echnology has evaporated any meaningful distinctions among distribution [media], making it unsustainable for the courts to segregate broadcasting from other [media] for First Amendment purposes. It is just fantastic to maintain that the First Amendment changes as you click through the channels on your television set.”” Remarks by Commissioner Michael K. Powell, The Public Interest Standard: A New Regulator’s Search for Enlightenment, American Bar Association 17th Annual Legal Forum on Communications Law (Las Vegas, Nevada, April 5, 1998).

[8] Only Justices Stevens, Rehnquist, and Chief Justice Burger joined in that part of the opinion asserting that indecent speech lies “”at the periphery of First Amendment concern.”” Pacifica, 438 U.S. at 743.

[9] Playboy Entertainment Group, 529 U.S. at 826.

[10] Denver Area Educ. Telecomms. Consortium v. FCC, 518 U.S. 717, 744 (1996).

[11] 521 U.S. at 871-881. In the context of obscenity which is not protected under the First Amendment, the work must be reviewed as a whole, the effect of the material is judged based on the average person, and material that has literary, artistic, political or scientific value cannot be restricted. None of these findings are required in determinations of indecency, although indecent speech is protected under the First Amendment. If the Supreme Court requires such findings before speech can be deemed obscene, it makes little sense to apply a lesser standard to speech that is, in fact, protected.

[12] United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 818 (2000)[Emphasis added.]

[13] Sovereign News Co. v. Falke, 448 F. Supp.306, 394 (N.D. Ohio 1977), remanded on other grounds, 610 F.2d 428 (6th Cir. 1979), cert. denied, 447 U.S. 923 (1980).

[14] Winters, at 508.

[15] Id. at 510.

[16] American Amusement Machine Ass’n v. Kendrick, 244 F.3d 572, 578 (7th Cir. 2001).

[17] Federal Trade Commission, “”Marketing Violent Entertainment to Children: A Review of Self-Regulation and Industry Practices in the Motion Picture, Music Recording & Electronic Game Industries,”” September, 2000, Appendix A

[18] Winters, 333 U.S. at 510.