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March 17, 2008

This morning the Supreme Court announced it will hear an appeal of a lower court ruling in FCC v. Fox Television Stations, et al.

Last summer, the ACLU joined a friend-of-the-court brief urging the 2nd Circuit Court of Appeals to overturn an FCC indecency ruling against FOX Broadcasting Corp, arguing the new standards adopted by Commission to censor indecency on the airwaves were overly vague and unconstitutional. The circuit court agreed, finding the FCC’s new regulations “arbitrary and capricious” and telling the FCC it needed to provide better justification for its new policy.

The Department of Justice appealed that decision on behalf of the FCC, because the Commission wants to maintain its ability to leverage huge fines on broadcasters any time a performer utters even an accidental or unintentional expletive.

In a similar case in 2004, the ACLU joined a coalition of major media companies, advocacy groups and performers in asking the FCC to reconsider its ruling that U2 lead singer Bono’s use of an expletive during a live telecast of the 2003 Golden Globe Awards (he said “this is really, really fucking brilliant” when receiving an award) was “indecent and profane.”

The FCC’s policy of policing television broadcasts with a vengeance doesn’t survive First Amendment scrutiny. Unfortunately, Congress is currently considering legislation that would reinstate the Commission’s overreaching ability to police the airwaves.

Giving the Commission the ability to leverage arbitrary fines based on a vague set of standards will have a chilling effect on free speech, because broadcasters trying to avoid the penalties will err on the side of caution and begin censoring content that wouldn’t actually be considered indecent.

Besides, the government should let parents do the parenting instead of forcing every family to adopt the same set of values. In this era of channel blocking and language filters, parents have access to all the tools they need to manage what their children see and hear.

The Second Circuit was right that the FCC has overstepped its bounds and, in fact, the Constitution, and the Supreme Court should uphold that decision. More on the ACLU’s work to fight unnecessary and unconstitutional censorship is here.

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