Two major broadcast associations teamed up to argue that the FCC’s discriminatory enforcement of indecency policy has a chilling effect on broadcast content and is unconstitutionally vague. It is urging the Supreme Court to affirm a Second Circuit finding against the FCC enforcement policy.
That vagueness makes FCC policy virtually impossible to follow. “Broadcasters are left to guess at how the policy will apply to them – and there is not just a risk but actual evidence that the policy is being applied in a discriminatory manner.”
The brief also charges that the FCC handles indecency issues in a manner that keeps them out of court, leaving broadcasters little choice but to steer so far away from any content that might be considered indecent by any remote chance.
They noted that real damage is inflicted on small local broadcasters who on the one hand are encouraged to provide strong local news coverage, and on the other are least able to afford broadcast delay equipment and the personnel necessary to operate it.
Rather, the fear of a possible six-figure fine for a fleeting and inadvertent indecent moment encourages broadcasters to simply avoid that type of programming, to the detriment of everyone concerned.
Here is the full summary from the NAB/RTDNA friend of the court argument:
“NAB, RTDNA, and their members have serious concerns about the Federal Communications Commission’s altered indecency policy, which reversed years of a more considered and restrained approach that showed greater sensitivity to the free speech interests of broadcasters and journalists around the country.
“In particular, NAB and RTDNA are concerned that lack of notice about and discriminatory enforcement of the Commission’s indecency policy has had and will continue to have a dramatic nationwide chilling effect on broadcast content that is not actually indecent.
“The Second Circuit correctly found that the Commission’s indecency policy is void for vagueness. In the guise of performing “contextual” analyses, the Commission is actually making its own subjective judgments about what content it deems valuable, and what content valueless. Broadcasters are left to guess at how the policy will apply to them – and there is not just a risk but actual evidence that the policy is being applied in a discriminatory manner.
“Exacerbating these problems is the Commission’s refusal to act on petitions for reconsideration or oppositions to notices of apparent liability with respect to many indecency complaints, which forecloses these Commission decisions from judicial review. Indeed, the Commission’s procedural maneuvering appears designed to ensure that its most vulnerable orders never leave the Commission and thus can never be reviewed by a court. Under this regime, broadcasters cannot be sure exactly what the law is and consequently steer far clear of anything that is even arguably indecent.
“The chilling effect of the Commission’s policy is palpable and broadly felt, particularly by local and independent broadcasters. These are the entities least able to afford the types of delay and blocking technology on which the government places so much emphasis. These are also the entities that provide much of the nation’s local live news coverage, which is particularly imperiled by the Commission’s indecency policy. Fearing major fines as a result of live coverage of an event at which a passing expletive may be uttered or nudity fleetingly depicted, broadcasters are reluctantly choosing not to cover certain kinds of events or air certain types of stories or programs at all.
“This Court’s narrow holding in FCC v. Pacifica Foundation, 438 U.S. 726 (1978), does not give the Commission authority to implement its vague and chilling indecency policy. And none of the rationales the government offers in defense of the Commission’s policy is supportable. This Court has never cited scarcity of broadcast spectrum as a basis for regulating broadcast content. If anything, the government’s position as licensor selectively allocating broadcast spectrum resources counsels against permitting content-based restrictions. As to the pervasiveness of broadcast media, even the government acknowledges that broadcasters face stiff competition from cable and other sources of news and entertainment that are not subject to the Commission’s censorship. Although the government tries to suggest that the existence of more outlets for speech somehow translates into a greater justification for government restrictions on broadcasters, the opposite is true. Finally, as to the accessibility of the broadcast medium to children, parents already have and use tools to control their children’s consumption of broadcast programming, and there is no reason to believe that they are in need of the government’s assistance in this regard. Moreover, this Court has found that other media that are at least as accessible to children – such as video games – may not be censored.
“In sum, the Commission’s indecency policy is not justified by Pacifica and cannot be squared with this Court’s First Amendment jurisprudence. The Second Circuit’s decision should therefore be affirmed.”
RBR-TVBR observation: The crime needs to have a better definition than “we know it when we see it.” Many of us have been guilty of speeding, for example, but we are very rarely able to plead ignorance of the offense, since it is posted in very large fonts at multiple locations on the actual scene of the crime.
It isn’t this way at all with indecency – it is an extremely gray zone, and FCC rulings that allow exceptions for a Tom Hanks movie but not a Martin Scorsese documentary, to mention just one example, do nothing but increase the murk.
There is gray area in speeding enforcement, of course. Most of the people we know believe that the real speed limit is posted mph +10, and indeed, most of us have been cruising along ten miles over the limit only to have a police officer, with no emergency signals engaged, simply blow past us without incident.
On the other hand, we and our wife were once pulled over by an officer when we were going one freaking mile over the limit (she was driving). We got the impression that the officer was in a particularly bad mood at that moment and was not going to take anything from anybody.
We did not get a ticket, and if we did, perhaps we would have been entitled to feeling righteously aggrieved for this selective enforcement of what we believed to be a gray area of the law.
However, had we gotten the ticket, the punctuation mark behind the first three digits of our monetary penalty would have been a period. For broadcasters pulled over for an indecency infraction, that punctuation mark might well be a bank-breaking comma.
This disconnect from defining the crime and the potential punishment is a major reason this case is at the highest court in the land, and why broadcasters need to win there.