ACLU Letter Urging Honorable Daniel K. Inouye and Honorable Ted Stevens to Vote "No" on S. 1780 to Restore the FCC’S Indecency Enforcement Regarding “Fleeting Expletives"

July 18, 2007

VOTE "NO" ON S. 1780 TO RESTORE THE FCC'SINDECENCY ENFORCEMENT REGARDING "FLEETING EXPLETIVES"

The Honorable Daniel K. Inouye
Chairman, Senate Commerce Committee
722 Hart Senate Office Building
Washington, DC 20510-1102

The Honorable Ted Stevens
Ranking Member, Senate Commerce Committee
522 Hart Senate Office Building
Washington, DC 20510-0201

Dear Chairman Inouye and Ranking Member Stevens:

On behalf of the ACLU, a non-partisan organization withhundreds of thousands of activists and members and 53 affiliatesnation-wide, we urge you to vote "NO" on S. 1780 when it comes to yourcommittee for a vote. This bill would reinstate the FCC's ability toprohibit the use of profanity from 6 a.m. to 10 p.m. on broadcasttelevision. Because such an amendment would have profound adverseimplications for the First Amendment, we urge you to oppose this bill.

This bill arises in response to a decision of the SecondCircuit Court of Appeals in Fox Television Stations v. FCC,decided June 4, 2007. Prior to 2003, the FCC would not fine forindecency "fleeting expletives" made in the context of a broadcasttelevision show. In 2003, the FCC abruptly changed that policy, findingthat any use of certain words presumptively constituted indecency.

The Second Circuit found that the FCC's policy on "fleetingexpletives" was arbitrary and capricious and without foundation.Consequently, the court invalidated the FCC's findings of indecencyimposed on several examples of fleeting expletives, and asked the FCCto provide its basis for changing its policy. The court also noted thatcurrent law made it highly unlikely the FCC would be able to provide abasis for its decision that would withstand First Amendment scrutiny.

The ACLU has long been a guardian of First Amendment values.Our concern with the FCC's indecency regime is that it is vague andshifting. This creates the effect of turning down the thermostat onfree speech, chilling artists and broadcasters. What is acceptabletoday may not be acceptable tomorrow. The FCC has also made clear thatits determinations will be based on a "contextual" analysis rather thanany clear rules. This merely adds to the confusion and increases thechill on speech.

The FCC's vague indecency standard breeds uncertainty andchills free speech. Furthermore, it is unnecessary for the FCC toenforce indecency standards. The actual number of programs drawingcomplaints has decreased, and parents now have the tools to protecttheir children from objectionable content. Finally, the FCC's authorityto regulate indecency is on shaky constitutional grounds.The Brownbackamendment would only reaffirm an unconstitutional grant of authority tothe FCC to regulate indecency on the broadcast airwaves.

The FCC's Vague StandardsHave Resulted in Uncertainty About What Constitutes "Indecency"

The uncertainty inherent in the FCC's indecency standard isalready having a chilling effect on speech that is clearly protectedunder the First Amendment.For example, the WB network in March 2006censored an episode of "The Bedford Diaries" over objections by itscreator because of fears that the FCC would impose fines over languageand situations contained in the show. Also in 2006, some CBS affiliatesrefused to air a documentary on the September 11 terrorist attacksbecause of concerns about language used by firefighters portrayed inthe movie.In 2004, various ABC affiliates refused to air "SavingPrivate Ryan" over concerns that the repeated use of certain expletiveswould result in fines.

Paradoxically, the FCC found that "Saving Private Ryan" (afictional work) did not violate indecency standards even with itsrepeated use of expletives, but found indecent a documentary entitled"The Blues: Godfathers and Sons" in which the interviewees used variousexpletives. It is little wonder that broadcasters are wary.

Adding to the confusion over indecency was the FCC's change inpractice regarding "fleeting" uses of expletives, addressed in the Foxcase. For nearly thirty years, the FCC appropriately found that thebroadcast of a fleeting expletive did not implicate the indecencyrules. This was in accord with the Supreme Court's observation in FCCv. Pacifica Foundation: "We have not decided that anoccasional expletive . . .would justify any sanction. . ." [1] The FCC,however, took a position at odds with the Supreme Court in its GoldenGlobe Awards Order when it concluded that a single utteranceof the F-word constituted "profane language." Shortly thereafter,various ABC affiliates refused to air "Saving Private Ryan" because ofits abundant use of expletives. When a complaint was filed against thebroadcasters who televised the movie, the FCC found that multiple usesof the F-word contained in the movie were not indecent or profane. TheFCC has emphasized, however that "such words may not be profane inspecified contexts." Thus, broadcasters are left with little guidanceas to what the FCC will decide about whether particular contexts makecertain expletives "profane" or "indecent." This confusion, and theFCC's failure to provide a convincing reason for its change in policy,resulted in the Second Circuit's opinion in Fox.

The result of this patchwork, ad hoc contextualexamination is massive uncertainty about what constitutes indecency orprofanity.

S. 1780 does nothing to clear up the confusion. It merelystates that the FCC shall maintain a policy that indecent or profanematerial may include a single word or image. [2] Thus, with passage ofS. 1780, broadcasters will face the same uncertainty that existed priorto the Fox decision: maybe a single utterance will be indecent, maybemultiple utterances will not. Only the FCC knows for sure, and it willdecide on the issue on a vague, contextual basis.

Uncertainty as to what is"indecent" leads to a chilling of speech

As the examples above illustrate, vagueness and uncertaintydemonstrably lead to a chilling of speech. Guessing incorrectly whethera program is or is not "indecent" can have important ramifications fora broadcaster, including huge fines and possibly loss of itsbroadcasting license. Vague laws and interpretations create traps forbroadcasters because they are unsure what conduct or speech willconstitute indecency. Rather than have broadcasters act at their peril,the law favors reasonable notice of what conduct will give rise tolegal consequences, so that the speaker or broadcaster may actaccordingly. Vagueness chills communications that may well NOT beindecent or profane, simply because the cost to the broadcaster ofbeing wrong is too great.

Vagueness encourages silence instead of robust debate."Uncertain meanings inevitably lead citizens to 'steer far wider of theunlawful zone' . . .than if the boundaries of the forbidden areas wereclearly marked." [3]The bottom line is that broadcasters enjoy FirstAmendment protection. The uncertainty inherent in the definition (orlack thereof) of "indecency" inevitably leads broadcasters to avoidcertain speech. To do otherwise risks a finding of "indecency" andpotentially disastrous liability.

All of this is fundamentally inconsistent with the"uninhibited, robust, and wide-open" [4] debate contemplated by theFirst Amendment. This is not just a matter of prohibiting certain wordsthat some might find objectionable. The Supreme Court has noted, "wecannot indulge in the facile assumption that one can forbid particularwords without also running a substantial risk of suppressing ideas inthe process." [5]The FCC's increased enforcement increases the risk ofstepping over a blurry and ill-defined line.

The Alleged Increase inComplaints Do Not Evidence An Increase in "Indecency"

The FCC has stated that complaints against indecency havedramatically increased, [6]apparently in an attempt to justifyincreased indecency enforcement. However, much of the alleged increaseresults from the change in the way the FCC tallies complaints.

Prior to the summer of 2003, the FCC aggregated togetheridentically worded form letters or computer-generated electroniccomplaints and counted them as a single complaint. Sometime during thesummer of 2003, without any public notice to announce the change, theFCC quietly changed its methodology to count group complaints asindividual complaints. [7]In early 2004, the FCC began counting identicalindecencycomplaints multiple times according to how many Commissioner's officesand other divisions of the FCC receive the complaint. [8]Examination ofthe complaints reveals that the vast majority of complaints areduplicate emails generated against a handful of programs targeted byactivist groups. [9]Because of these changes, between 2002 and 2004,complaints grew by more than 100 times. However, the number of programsthat were the subject of complaints actually dropped by 20% over thesame two-year period. [10]Thus, the "dramatic" rise in complaintsappears not to be the result of a rampant "increase" in indecency onbroadcast television.

Parents Already HaveSufficient Tools to Protect Their Children

As President Bush has previously noted, parents are theappropriate parties to make decisions about protecting their children.Technology has made many tools available that apply to broadcast mediaas well. For example, approximately 85% of households receive theirbroadcast television through cable. All of the tools available to cable(channel blocking, program blocking, and so forth) are available forbroadcast television.

TV Watch, a coalition of 27 prominent individuals andorganizations representing more than 4 million Americans, sponsorsinitiatives such as the"1-2-3 Save TV" tool kit for parents. [11] Thesetypes of initiatives help educate concerned parents about the toolsavailable.

Between technology and education, dramatic advances haveoccurred. Parents have the tools and the power to protect theirchildren. There is little justification for the FCC acting as thenation's "nanny."

The Foundation of theFCC's Authority to Regulate Indecency Has Crumbled.

In FCC v.Pacifica Foundation, 438 U.S. 726 (1978), the SupremeCourt allowed some limited regulation of an allegedly indecentbroadcast (George Carlin's "Seven Dirty Words" Monologue). Despite theFCC's claims that this case provides its authority to regulateindecency, great caution should be exercised in attempting to rely uponthis 29-year-old case as precedent for deciding what broadcasts areindecent 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 unquestionablyprotected. . . .Indeed, we may assume, arguendo,that thismonologue would be protected in other contexts.") The ability toregulate indecency in the broadcasting medium is an exception ratherthan the general rule. In many other contexts, the Supreme Court hasinvalidated efforts to restrict indecency. [12] In Pacifica, the Courtapplied a slightly different standard for broadcasting, but thatdecision cannot be read too broadly.

First, the decision was a fragmented one (5-4) that neitherapproved a particular standard for indecency, nor upheld a substantivepenalty against the licensee. [13] Since Pacifica,theSupreme Court has acknowledged that the FCC's definition of indecencywas not endorsed by a majority of the Justices, and has repeatedlydescribed the decision as an "emphatically narrow holding." [14]

Second, the rationale for the Pacifica decision,that "the broadcast media have established a uniquely pervasivepresence in the lives of all Americans," [15] is highly questionable inthis era of cable, satellite and the Internet, all of which competewith broadcast television. Despite the pervasiveness of all media ingeneral, the government has only been allowed limited contentregulation of the broadcast media.

The Court since Pacificahas invalidated government-imposed indecency restrictions on cabletelevision, despite its "pervasiveness." While Pacificanoted thepervasiveness of broadcast television as part of its rationale, theCourt in striking down such regulation in the cable television contextfound specifically that "[c]able television broadcasting, includingaccess channel broadcasting, is as 'accessible to children' asover-the-air broadcasting, if not more so." [16] Thus, the Courtundercut the rationale in Pacifica by its later decision.

Finally, in Renov. ACLU, the Court for the first time subjected theindecency definition (in the Internet context) to rigorous scrutiny,and by a vote of 9-0, found it to be seriously deficient. [17] Renoandother decisions subsequent to Pacificaundercut Pacifica'srationale and raise serious questions about its vitality. Pacifica'slogicand subsequent developments no longer support the FCC's authority toregulate indecency. [18]

Conclusion

Former FCC Chairman Reed Hundt has described the current FCC'sindecency enforcement as "the biggest threat to the First Amendmentfaced by the electronic media since the McCarthy era, because it seeksto limit television viewers' freedom of choice." [19]

Technology and education give parents the tools to protecttheir children from programs they believe are indecent, regardless ofhow the FCC defines "indecency."

The current "indecency" regime as administered by the FCC isvague, leading to confusion among broadcasters and speakers. This leadsto a widening chill on First Amendment speech, and a restraint onprograms from broadcasters and artists to willing listeners. Finally,technology and legal advancements seriously undermine the FCC'sauthority to regulate "indecency."

S. 1780 represents a step backward for First Amendmentfreedoms. We therefore urge you to reject it when it comes before yourcommittee for a vote.

Sincerely,

Caroline Fredrickson
Director, Washington Legislative Office

Marvin J. Johnson
Legislative Counsel

cc: Members of the Committee

[1] FCC v.Pacifica Foundation,438 U.S. 726, 750 (1978).

[2] Emphasis added.

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

[4] New YorkTimes v. Sullivan, 376 U.S. 254, 270 (1964).

[5] Cohen v.California, 403 U.S. 15 at 26 (1971).

[6] Federal CommunicationCommission's March 2006 OmnibusOrder Resolving Numerous Broadcast Indecency Complaints paragraph 1.

[7] Thierer, Adam,"Examining the FCC's Complant-DrivenBroadcast Indecency Enforcement Process," available at http://www.pff.org/issues-pubs/pops/pop12.22indecencyenforcement.pdf

[8] Id.

[9] Id.

[10] Id.

[11] Thierer, Adam,"Parents Have Many Tools to CombatObjectionable Media Content," available at http://www.pff.org/issues-pubs/pops/pop13.9contenttools.pdf

[12] Print medium: Butlerv. Michigan, 352 U.S. 380, 383(1957); See also Hamlingv. United States, 418 U.S. 87, 113-114 (1974)(statutory prohibition on "indecent" or "obscene" speech may beconstitutionally enforced only against obscenity); Film: UnitedStatesv. 12 200-ft. Reels of Film,, 413 U.S. 123, 130 n.7(1973); In themails: Bolger v. YoungsDrug Products Corp. 463 U.S. 60 (1983); In thepublic forum: Erzoznikv. City of Jacksonville, 422 U.S. 205 (1975);Cable Television: UnitedStates v. Playboy Entertainment Group, Inc.,529 U.S. 803 (2000); the Internet: Renov. ACLU, 521 U.S. 844 (1997).

[13] See Pacifica,438 U.S. at 743 (plurality op.) and at755-56 (Powell, J., concurring) ("[t]he Court today reviews only theFCC's holding that Carlin's monologue was indecent 'as broadcast' attwo o'clock in the afternoon, and not the broad sweep of the FCC'sopinion"). See also CarlinCommunications, Inc. v. FCC, 837 F.2d 546,559 (2d Cir. 1988) ("[t]he PacificaCourt declined to endorse the FCCdefinition of what was indecent"); ACLUv. Reno, No. Civ. A. 96-963,1996 WL 65464 at *3 (E.D.Pa. Feb. 15, 1996) (Buckwalter, J.) ("itsimply is not clear, contrary to what the government suggests, that theword 'indecent' has ever been defined by the Supreme Court").

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

[15] Pacifica,438 U.S. at 748.

[16] DenverArea Educ. Telecomms. Consortium v. FCC, 518 U.S.717, 744 (1996).

[17] 521 U.S. at 871-881.In the context of obscenity which isnot protected under the First Amendment, the work must be reviewed as awhole, the effect of the material is judged based on the averageperson, and material that has literary, artistic, political orscientific value cannot be restricted. None of these findings arerequired in determinations of indecency, although indecent speech isprotected under the First Amendment. If the Supreme Court requires suchfindings before speech can be deemed obscene, it makes little sense toapply a lesser standard to speech that is, in fact, protected.

[18] The Second Circuit inFox Television Stationsv. FCCspecifically noted this crumbling foundation for theindecency regime:"Because Renoholds that a regulation that covers speech that 'incontext, depicts or describes, in terms patently offensive as measuredby contemporary community standards, sexual or excretory activities ororgans' is unconstitutionally vague, we are skeptical that the FCC'sidentically-worded indecency test could nevertheless provide therequisite clarity to withstand constitutional scrutiny."

[19] Hundt, Reed,"Regulating Indecency: The FederalCommunication FCC's Threat to the First Amendment," 13 Duke Law andTechnology Review, 2005, Paragraph 4.

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