Watchdog asks Supremes to affirm broadcaster indecency wins


The FCC has been compiling a losing record in its attempts to defend its indecency policy at the court of appeals level. Now Media Access Project is asking the Supreme Court to affirm cases that call the FCC’s inscrutable policy unconstitutional.

MAP has filed a brief with SCOTUS in support of clients including Center for Creative Voices in Media and the Future of Music Coalition, who are supporting Fox Television in the ongoing indecency court battles.

In a release, MAP described the brief, saying it “…argues that current FCC policy is unconstitutional under existing Supreme Court precedent (the Pacifica ‘seven dirty words’ case), and that the Court need go no further to resolve the case. It contends that the FCC’s policy has a chilling effect on artists engaged in expressive speech because it is vague and inconsistent.

The MAP brief goes elsewhere, to the 1969 Red Lion decision, which was concerned with diversity, not indecency. “The brief also disputes the argument of some broadcasters that the Supreme Court’s Red Lion case,” wrote MAP, “which establishes the First Amendment framework for broadcast regulation, should be reexamined. Red Lion, it says, relates to promoting additional speech, whereas indecency regulation under Pacifica is about suppressing speech.”

MAP attorneys responsible for the brief are Chrystiane Pereira and Andrew Jay Schwartzman (pictured), with the assistance of intern Tariq Khan of the American University’s Washington College of Law.

MAP describes itself as “…a nonprofit, public interest law firm working to protect free expression, innovation, and economic growth by promoting low cost, universal access to media outlets and communications services.”
Schwartzman had earlier commented on the SCOTUS interest in indecency, and said last summer, ““It is hardly a surprise that the Supreme Court decided to hear this case.  This action does not suggest that the Court is inclined to reverse the lower court’s decision.  The Court almost always hears appeals when a federal policy has been declared unconstitutional.”

“It is noteworthy – and encouraging – that the Court limited its review to the specific question of whether the FCC’s policies violate the Constitution,” continued Schwartzman. “Several of the broadcasters in the case had invited the Court to consider the constitutionality of the entire scheme of broadcast regulation.  MAP’s clients argued against this, because it is the wrong question, and the wrong case, to take up that question.”
RBR-TVBR observation: Go get ‘em, MAP! The battle to keep broadcast indecency enforcement on some kind of an even keel is important to the industry and its audience alike. The combination of unfathomable rules and outrageous possible punishments should have most broadcasters cheering on the MAP effort.