ACLU Warns House Approval of Increased Indecency Fines Will Have a Chilling Effect on Speech

March 11, 2004 12:00 am

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WASHINGTON – As the House today passed legislation to increase Federal Communications Commission fines for broadcast indecency, the American Civil Liberties Union called the measure ill-advised, saying that current ambiguities in the definition of indecency, coupled with the increased penalties, would chill free speech over the nation’s airwaves, and called on the Senate to preserve First Amendment protections.

“The House’s action today seeking to deter speech that is constitutionally protected will have a chilling effect on expression in this country; the very notion runs counter to everything prescribed in the First Amendment” said Marvin Johnson, an ACLU Legislative Counsel. “The vagueness of the language will lead broadcasters and individuals to stifle their remarks and remain silent rather than run the risk of facing an FCC fine. Not only will our First Amendment rights suffer, but so will the national dialogue. In the end, we are left with no clear understanding of just what is ‘indecent’ and worse yet, it seems we will only find out when huge fines are levied on broadcasters or speakers.”

The legislation, HR 3717 or the Broadcast Decency Enforcement Act of 2004, would dramatically increase the fines for the transmission of “obscene, indecent, or profane” language on television or radio — to $275,000 for each individual violation, and a total of $3 million for a continuing violation. The Senate is considering a similar measure.

In the past, the Supreme Court has 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, unanimously striking down essentially the same definition that is currently used by the FCC for the Internet.

Consequently, television and radio stations or speakers, 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.

“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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