ACLU Urges High Court to Uphold Free Speech Ruling

March 17, 2008 12:00 am

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Increased Profanity Policing Unfair and Unconstitutional

Washington, DC – The Court announced this morning that it will hear an appeal of a lower court ruling in FCC v. Fox Television Stations, et al. that found the FCC failed to provide adequate justification for its regulations governing the broadcast of “fleeting expletives.” The Department of Justice is appealing that decision on behalf of the Federal Communications Commission (FCC).

Contrary to its practice over the last several decades, the FCC recently began leveraging large fines against broadcasting companies for use of even isolated profanities aired on their stations. Last summer, Fox Broadcasting Company asked the U.S. Court of Appeals for the Second Circuit to reverse two such indecency findings against the company, arguing that the FCC had not historically fined broadcasters for fleeting expletives on live television.

The circuit court agreed, ruling that the FCC’s enforcement of indecency findings were “arbitrary and capricious,” and ordered the FCC to provide better justification for its new policy. The Justice Department appealed that ruling to the Supreme Court.

The following can be attributed to Caroline Fredrickson, Director of the Washington Legislative Office of the ACLU:

“The FCC’s new policy of policing television broadcasts with a vengeance doesn’t survive First Amendment scrutiny. 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.

“The government should let parents do the parenting. Parents have access to all the tools they need to manage what their children see and hear, from channel blocking to language filters and don’t need the FCC looking over their shoulder/second-guessing their decisions. The Second Circuit was right that the FCC has overstepped its bounds and, in fact, the Constitution, and we believe the Supreme Court should uphold that decision.”

Congress is also considering a fleeting expletives bill, which the ACLU has called unwise, unnecessary, and unconstitutional. The bill would reinstate the Federal Communications Commission’s (FCC) ability to prohibit the use of any profanity from 6 a.m. to 10 p.m. on broadcast television.

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