ACLU Says Increased Indecency Fines Threaten Greater Chilling Effect on Speech

February 11, 2004 12:00 am

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WASHINGTON – In light of a House hearing on legislation to increase Federal Communications Commission fines for broadcast indecency, the American Civil Liberties Union today urged caution against such a move, saying that current ambiguities in the definition of indecency, coupled with the increased penalties, would serve to chill free speech over the nation’s airwaves.

“The current proposal is like instituting a mandatory life sentence for bribery, without clearly laying out what constitutes a bribe,” said Marvin Johnson, an ACLU Legislative Counsel. “You can imagine how many people, fearful of doing something that just looks improper, would simply stop communicating with elected officials. The same principle applies here – these bills look to turn down the thermostat and chill broadcast speech.”

The legislation, called the Broadcast Decency Enforcement Act of 2004, is scheduled for review and revision today and tomorrow in a House Committee on Energy and Commerce subcommittee. The Senate will also hold its own committee oversight hearing on the issue of indecency. The House measure would increase the fines ten-fold for the transmission of “obscene, indecent, or profane” language over television or radio — to $275,000 for each individual violation, and a total of $3 million for a continuing violation.

The Supreme Court actually struck down a series of efforts to restrict “indecency” in print, the mail, the public forum, on cable television and on the Internet. The only relevant Supreme Court case for public broadcasts held them to a slightly different standard as these other media, but only under an “emphatically narrow” decision. And, the only Supreme Court decision to analyze a statutory definition of indecency found it to be vague and overbroad, striking down essentially the same definition that is currently used by the FCC for the Internet.

Consequently, television and radio stations, under a scheme of broadened fines and sanctions for indecency, would obviously err on the side of caution, over-sanitizing their broadcasts at the potential expense of proper news reporting, political commentary and other content that should be protected by the Constitution.

The current House measure also fails to take into account the changing nature of the modern media marketplace, in which many adolescents and teenagers have easy access to hundreds of cable channels – not to mention high-speed Internet access – which makes concern that children will be exposed over the broadcast airwaves to violent or sexual content or will have their vocabularies profanely expanded seem quaint and outmoded.

Also, while the bill makes a bad situation worse, the ACLU noted it was better than a bill spelling out the “eight dirty words” broadcasters cannot allow on the airwaves, which would actually create a host of constitutional problems.

“We should note that the ambiguity in FCC standards of indecency is such that they could be used to silence, for example, right-wing talk radio under the next Democratic administration,” Johnson added. “This isn’t about four-letter words on prime-time cop dramas, it’s about our ability to publicly access and express ideas and arguments.”

The ACLU’s letter on the House bill can be found at:

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