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Indecency? More like Inconsistency.

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August 7, 2008

What do the ACLU and Nicole Richie have in common? We both have problems with the FCC’s new practice of imposing major fines on networks that air even “fleeting expletives.

And we’re notalone! Todaythe ACLU was joined by 10 wide-ranging organizations, from the First Amendment Project to the Directors Guild of America, on a friend-of-the-court-brief filed with the Supreme Court.

In the brief, we criticize the FCC’s regulation of “indecent speech” as arbitrary, inconsistent and irreconcilable with core First Amendment values and urge the Supreme Court to uphold a lower court ruling (PDF) in FCC v. Fox Television stations striking down the recent FCC attempts at censorship.

Here’s an excerpt:

The FCC’s conduct in the thirty years since Federal Communications Commission v. Pacifica Foundation, 438 U.S. 726 (1978), narrowly permitted censorship of “indecency” has been unpredictable, at times sweeping, and highly subjective. The problem intensified in 2004 after the Commission announced that even one “fleeting expletive” was now, in most circumstances, barred from the airwaves; then applied that new rule to reverse its previous decision that the rock star Bono’s single exclamation (“fucking brilliant!”) was enough to make a Golden Globe Awards program unlawfully indecent and profane. In the next two years, the agency made additional arbitrary judgments, finding no indecency in the movie Saving Private Ryan” with its many expletives, but condemning the Martin Scorsese documentary, “The Blues” because of vulgar words used by musicians and their music industry colleagues. Thirty years of such discretionary and inconsistent decision-making compels the conclusion that the entire indecency regime is vague, arbitrary, capricious, and overbroad. The fleeting expletives rule in particular has had a widespread chilling effect on valuable programming. And the unconstitutionality of the present system is not remedied by the existence of a late-night “safe harbor” for possibly indecent programs.

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