ACLU Letter Urging Honorable Daniel K. Inouye and Honorable Ted Stevens to Vote "No" on S. 1780 to Restore the FCC’S Indecency Enforcement Regarding “Fleeting Expletives" (7/18/2007)
July 18, 2007
VOTE "NO" ON S. 1780 TO RESTORE THE FCC'S
INDECENCY ENFORCEMENT REGARDING "FLEETING EXPLETIVES"
The Honorable Daniel K. Inouye
Chairman, Senate Commerce Committee
722 Hart Senate Office Building
Washington, DC 20510-1102
The Honorable Ted Stevens
Ranking Member, Senate Commerce Committee
522 Hart Senate Office Building
Washington, DC 20510-0201
Dear Chairman Inouye and Ranking Member Stevens:
On behalf of the ACLU, a non-partisan organization with
hundreds of thousands of activists and members and 53 affiliates
nation-wide, we urge you to vote "NO" on S. 1780 when it comes to your
committee for a vote. This bill would reinstate the FCC's ability to
prohibit the use of profanity from 6 a.m. to 10 p.m. on broadcast
television. Because such an amendment would have profound adverse
implications for the First Amendment, we urge you to oppose this bill.
This bill arises in response to a decision of the Second
Circuit Court of Appeals in Fox Television Stations v. FCC,
decided June 4, 2007. Prior to 2003, the FCC would not fine for
indecency "fleeting expletives" made in the context of a broadcast
television show. In 2003, the FCC abruptly changed that policy, finding
that any use of certain words presumptively constituted indecency.
The Second Circuit found that the FCC's policy on "fleeting
expletives" was arbitrary and capricious and without foundation.
Consequently, the court invalidated the FCC's findings of indecency
imposed on several examples of fleeting expletives, and asked the FCC
to provide its basis for changing its policy. The court also noted that
current law made it highly unlikely the FCC would be able to provide a
basis for its decision that would withstand First Amendment scrutiny.
The ACLU has long been a guardian of First Amendment values.
Our concern with the FCC's indecency regime is that it is vague and
shifting. This creates the effect of turning down the thermostat on
free speech, chilling artists and broadcasters. What is acceptable
today may not be acceptable tomorrow. The FCC has also made clear that
its determinations will be based on a "contextual" analysis rather than
any clear rules. This merely adds to the confusion and increases the
chill on speech.
The FCC's vague indecency standard breeds uncertainty and
chills free speech. Furthermore, it is unnecessary for the FCC to
enforce indecency standards. The actual number of programs drawing
complaints has decreased, and parents now have the tools to protect
their children from objectionable content. Finally, the FCC's authority
to regulate indecency is on shaky constitutional grounds.The Brownback
amendment would only reaffirm an unconstitutional grant of authority to
the FCC to regulate indecency on the broadcast airwaves.
The FCC's Vague Standards
Have Resulted in Uncertainty About What Constitutes "Indecency"
The uncertainty inherent in the FCC's indecency standard is
already having a chilling effect on speech that is clearly protected
under the First Amendment.For example, the WB network in March 2006
censored an episode of "The Bedford Diaries" over objections by its
creator because of fears that the FCC would impose fines over language
and situations contained in the show. Also in 2006, some CBS affiliates
refused to air a documentary on the September 11 terrorist attacks
because of concerns about language used by firefighters portrayed in
the movie.In 2004, various ABC affiliates refused to air "Saving
Private Ryan" over concerns that the repeated use of certain expletives
would result in fines.
Paradoxically, the FCC found that "Saving Private Ryan" (a
fictional work) did not violate indecency standards even with its
repeated use of expletives, but found indecent a documentary entitled
"The Blues: Godfathers and Sons" in which the interviewees used various
expletives. It is little wonder that broadcasters are wary.
Adding to the confusion over indecency was the FCC's change in
practice regarding "fleeting" uses of expletives, addressed in the Fox
case. For nearly thirty years, the FCC appropriately found that the
broadcast of a fleeting expletive did not implicate the indecency
rules. This was in accord with the Supreme Court's observation in FCC
v. Pacifica Foundation: "We have not decided that an
occasional expletive . . .would justify any sanction. . ." [1] The FCC,
however, took a position at odds with the Supreme Court in its Golden
Globe Awards Order when it concluded that a single utterance
of the F-word constituted "profane language." Shortly thereafter,
various ABC affiliates refused to air "Saving Private Ryan" because of
its abundant use of expletives. When a complaint was filed against the
broadcasters who televised the movie, the FCC found that multiple uses
of the F-word contained in the movie were not indecent or profane. The
FCC has emphasized, however that "such words may not be profane in
specified contexts." Thus, broadcasters are left with little guidance
as to what the FCC will decide about whether particular contexts make
certain expletives "profane" or "indecent." This confusion, and the
FCC's failure to provide a convincing reason for its change in policy,
resulted in the Second Circuit's opinion in Fox.
The result of this patchwork, ad hoc contextual
examination is massive uncertainty about what constitutes indecency or
profanity.
S. 1780 does nothing to clear up the confusion. It merely
states that the FCC shall maintain a policy that indecent or profane
material may include a single word or image. [2] Thus, with passage of
S. 1780, broadcasters will face the same uncertainty that existed prior
to the Fox decision: maybe a single utterance will be indecent, maybe
multiple utterances will not. Only the FCC knows for sure, and it will
decide on the issue on a vague, contextual basis.
Uncertainty as to what is
"indecent" leads to a chilling of speech
As the examples above illustrate, vagueness and uncertainty
demonstrably lead to a chilling of speech. Guessing incorrectly whether
a program is or is not "indecent" can have important ramifications for
a broadcaster, including huge fines and possibly loss of its
broadcasting license. Vague laws and interpretations create traps for
broadcasters because they are unsure what conduct or speech will
constitute indecency. Rather than have broadcasters act at their peril,
the law favors reasonable notice of what conduct will give rise to
legal consequences, so that the speaker or broadcaster may act
accordingly. Vagueness chills communications that may well NOT be
indecent or profane, simply because the cost to the broadcaster of
being wrong is too great.
Vagueness encourages silence instead of robust debate.
"Uncertain meanings inevitably lead citizens to 'steer far wider of the
unlawful zone' . . .than if the boundaries of the forbidden areas were
clearly marked." [3]
The bottom line is that broadcasters enjoy First
Amendment protection. The uncertainty inherent in the definition (or
lack thereof) of "indecency" inevitably leads broadcasters to avoid
certain speech. To do otherwise risks a finding of "indecency" and
potentially disastrous liability.
All of this is fundamentally inconsistent with the
"uninhibited, robust, and wide-open" [4] debate contemplated by the
First Amendment. This is not just a matter of prohibiting certain words
that some might find objectionable. The Supreme Court has noted, "we
cannot indulge in the facile assumption that one can forbid particular
words without also running a substantial risk of suppressing ideas in
the process." [5]
The FCC's increased enforcement increases the risk of
stepping over a blurry and ill-defined line.
The Alleged Increase in
Complaints Do Not Evidence An Increase in "Indecency"
The FCC has stated that complaints against indecency have
dramatically increased, [6]
apparently in an attempt to justify
increased indecency enforcement. However, much of the alleged increase
results from the change in the way the FCC tallies complaints.
Prior to the summer of 2003, the FCC aggregated together
identically worded form letters or computer-generated electronic
complaints and counted them as a single complaint. Sometime during the
summer of 2003, without any public notice to announce the change, the
FCC quietly changed its methodology to count group complaints as
individual complaints. [7]
In early 2004, the FCC began counting identical
indecency
complaints multiple times according to how many Commissioner's offices
and other divisions of the FCC receive the complaint. [8]
Examination of
the complaints reveals that the vast majority of complaints are
duplicate emails generated against a handful of programs targeted by
activist groups. [9]
Because of these changes, between 2002 and 2004,
complaints grew by more than 100 times. However, the number of programs
that were the subject of complaints actually dropped by 20% over the
same two-year period. [10]
Thus, the "dramatic" rise in complaints
appears not to be the result of a rampant "increase" in indecency on
broadcast television.
Parents Already Have
Sufficient Tools to Protect Their Children
As President Bush has previously noted, parents are the
appropriate parties to make decisions about protecting their children.
Technology has made many tools available that apply to broadcast media
as well. For example, approximately 85% of households receive their
broadcast television through cable. All of the tools available to cable
(channel blocking, program blocking, and so forth) are available for
broadcast television.
TV Watch, a coalition of 27 prominent individuals and
organizations representing more than 4 million Americans, sponsors
initiatives such as the"1-2-3 Save TV" tool kit for parents. [11] These
types of initiatives help educate concerned parents about the tools
available.
Between technology and education, dramatic advances have
occurred. Parents have the tools and the power to protect their
children. There is little justification for the FCC acting as the
nation's "nanny."
The Foundation of the
FCC's Authority to Regulate Indecency Has Crumbled.
In FCC v.
Pacifica Foundation, 438 U.S. 726 (1978), the Supreme
Court allowed some limited regulation of an allegedly indecent
broadcast (George Carlin's "Seven Dirty Words" Monologue). Despite the
FCC's claims that this case provides its authority to regulate
indecency, great caution should be exercised in attempting to rely upon
this 29-year-old case as precedent for deciding what broadcasts are
indecent or the ability to impose draconian penalties.
Initially, it is important to note that, unlike obscenity,
indecent speech is protected under the First Amendment. Id., at 746
("Some uses of even the most offensive words are unquestionably
protected. . . .Indeed, we may assume, arguendo,
that this
monologue would be protected in other contexts.") The ability to
regulate indecency in the broadcasting medium is an exception rather
than the general rule. In many other contexts, the Supreme Court has
invalidated efforts to restrict indecency. [12] In Pacifica, the Court
applied a slightly different standard for broadcasting, but that
decision cannot be read too broadly.
First, the decision was a fragmented one (5-4) that neither
approved a particular standard for indecency, nor upheld a substantive
penalty against the licensee. [13] Since Pacifica,
the
Supreme Court has acknowledged that the FCC's definition of indecency
was not endorsed by a majority of the Justices, and has repeatedly
described the decision as an "emphatically narrow holding." [14]
Second, the rationale for the Pacifica decision,
that "the broadcast media have established a uniquely pervasive
presence in the lives of all Americans," [15] is highly questionable in
this era of cable, satellite and the Internet, all of which compete
with broadcast television. Despite the pervasiveness of all media in
general, the government has only been allowed limited content
regulation of the broadcast media.
The Court since Pacifica
has invalidated government-imposed indecency restrictions on cable
television, despite its "pervasiveness." While Pacifica
noted the
pervasiveness of broadcast television as part of its rationale, the
Court in striking down such regulation in the cable television context
found specifically that "[c]able television broadcasting, including
access channel broadcasting, is as 'accessible to children' as
over-the-air broadcasting, if not more so." [16] Thus, the Court
undercut the rationale in Pacifica by its later decision.
Finally, in Reno
v. ACLU, the Court for the first time subjected the
indecency definition (in the Internet context) to rigorous scrutiny,
and by a vote of 9-0, found it to be seriously deficient. [17] Reno
and
other decisions subsequent to Pacifica
undercut Pacifica's
rationale and raise serious questions about its vitality. Pacifica's
logic
and subsequent developments no longer support the FCC's authority to
regulate indecency. [18]
Conclusion
Former FCC Chairman Reed Hundt has described the current FCC's
indecency enforcement as "the biggest threat to the First Amendment
faced by the electronic media since the McCarthy era, because it seeks
to limit television viewers' freedom of choice." [19]
Technology and education give parents the tools to protect
their children from programs they believe are indecent, regardless of
how the FCC defines "indecency."
The current "indecency" regime as administered by the FCC is
vague, leading to confusion among broadcasters and speakers. This leads
to a widening chill on First Amendment speech, and a restraint on
programs from broadcasters and artists to willing listeners. Finally,
technology and legal advancements seriously undermine the FCC's
authority to regulate "indecency."
S. 1780 represents a step backward for First Amendment
freedoms. We therefore urge you to reject it when it comes before your
committee for a vote.
Sincerely,
Caroline Fredrickson
Director, Washington Legislative Office
Marvin J. Johnson
Legislative Counsel
cc: Members of the Committee
[1] FCC v.
Pacifica Foundation,
438 U.S. 726, 750 (1978).
[2] Emphasis added.
[3] Grayned v.
City of Rockford, 408 U.S. 104, 109 (1972).
[4] New York
Times v. Sullivan, 376 U.S. 254, 270 (1964).
[5] Cohen v.
California, 403 U.S. 15 at 26 (1971).
[6] Federal Communication
Commission's March 2006 Omnibus
Order Resolving Numerous Broadcast Indecency Complaints paragraph 1.
[7] Thierer, Adam,
"Examining the FCC's Complant-Driven
Broadcast Indecency Enforcement Process," available at http://www.pff.org/issues-pubs/pops/pop12.22indecencyenforcement.pdf
[8] Id.
[9] Id.
[10] Id.
[11] Thierer, Adam,
"Parents Have Many Tools to Combat
Objectionable Media Content," available at http://www.pff.org/issues-pubs/pops/pop13.9contenttools.pdf
[12] Print medium: Butler
v. Michigan, 352 U.S. 380, 383
(1957); See also Hamling
v. United States, 418 U.S. 87, 113-114 (1974)
(statutory prohibition on "indecent" or "obscene" speech may be
constitutionally enforced only against obscenity); Film: United
States
v. 12 200-ft. Reels of Film,, 413 U.S. 123, 130 n.7
(1973); In the
mails: Bolger v. Youngs
Drug Products Corp. 463 U.S. 60 (1983); In the
public forum: Erzoznik
v. City of Jacksonville, 422 U.S. 205 (1975);
Cable Television: United
States v. Playboy Entertainment Group, Inc.,
529 U.S. 803 (2000); the Internet: Reno
v. ACLU, 521 U.S. 844 (1997).
[13] See Pacifica,
438 U.S. at 743 (plurality op.) and at
755-56 (Powell, J., concurring) ("[t]he Court today reviews only the
FCC's holding that Carlin's monologue was indecent 'as broadcast' at
two o'clock in the afternoon, and not the broad sweep of the FCC's
opinion"). See also Carlin
Communications, Inc. v. FCC, 837 F.2d 546,
559 (2d Cir. 1988) ("[t]he Pacifica
Court declined to endorse the FCC
definition of what was indecent"); ACLU
v. Reno, No. Civ. A. 96-963,
1996 WL 65464 at *3 (E.D.Pa. Feb. 15, 1996) (Buckwalter, J.) ("it
simply is not clear, contrary to what the government suggests, that the
word 'indecent' has ever been defined by the Supreme Court").
[14] Reno,
521 U.S. at 866-867,870; Sable,
492 U.S. at 127;
Bolger, 463
U.S. at 74.
[15] Pacifica,
438 U.S. at 748.
[16] Denver
Area Educ. Telecomms. Consortium v. FCC, 518 U.S.
717, 744 (1996).
[17] 521 U.S. at 871-881.
In the context of obscenity which is
not protected under the First Amendment, the work must be reviewed as a
whole, the effect of the material is judged based on the average
person, and material that has literary, artistic, political or
scientific value cannot be restricted. None of these findings are
required in determinations of indecency, although indecent speech is
protected under the First Amendment. If the Supreme Court requires such
findings before speech can be deemed obscene, it makes little sense to
apply a lesser standard to speech that is, in fact, protected.
[18] The Second Circuit in
Fox Television Stations
v. FCC
specifically noted this crumbling foundation for the
indecency regime:
"Because Reno
holds that a regulation that covers speech that 'in
context, depicts or describes, in terms patently offensive as measured
by contemporary community standards, sexual or excretory activities or
organs' is unconstitutionally vague, we are skeptical that the FCC's
identically-worded indecency test could nevertheless provide the
requisite clarity to withstand constitutional scrutiny."
[19] Hundt, Reed,
"Regulating Indecency: The Federal
Communication FCC's Threat to the First Amendment," 13 Duke Law and
Technology Review, 2005, Paragraph 4.
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