The creative guilds, the ACLU and a pair of former FCC commissioners were among the dozens of people and organizations that asked the federal court Thursday to throw out the commission’s new indecency standards, arguing that the agency’s interpretation of the rules has made the regulations constitutionally suspect.
In a “friend of the court” brief filed Thursday, the groups asked the 2nd Circuit Court of Appeals to overturn an FCC ruling issued this year that applied new standards for censoring indecency and profanity. The DGA, SAG, WGA East, WGA West and AFTRA were among those joining the ACLU to urge the court to throw out the FCC’s censorship scheme altogether, arguing that “the FCC’s efforts to regulate in this area have proven to be constitutionally unworkable.”
The groups say that the FCC standards are too broad and inconsistent. They note that the FCC ruled last year that broadcasts of the fictional film “Saving Private Ryan” were not indecent or profane because the fleeting expletives were “integral to the film’s objective,” yet the same standard condemned Martin Scorsese’s PBS documentary “The Blues” for including similar language. Substituting their judgment for Scorsese’s, the FCC commissioners said that the expletives were artistically necessary in “Ryan” but not in “Blues.”
“Actors, directors and writers understand that the public, particularly parents, have legitimate concerns about the broadcasting of programming that is not appropriate for children. However, we do not believe the answer lies in the FCC’s decision to expand its authority in a way that opens all programming to arbitrary and open-ended decision making,” the DGA, SAG, WGAE and WGAW said in a joint statement. “The FCC’s decision overturns its long-standing policy and has led to random determinations about what words or content can be deemed ‘indecent’ with no regard to context or type of programming. That is why we have joined in this amicus filing today, united in our support of the television networks whose programming we all create together. We believe that the FCC should avoid exerting unwarranted influence over creative content.”
In 2004, after U2 frontman Bono said wining a Golden Globe was “really, really fucking brilliant,” the commission changed the standard for indecency, ruling that some words are so foul that they automatically draw commission rebuke even if they are a slip of the tongue.
Since the FCC’s decision in that case, the policy has been controversial as broadcasters argue that the commission changed the long-standing policy that held broadcasters blameless for the unplanned utterance of individual words. This case, in the 2nd Circuit Court of Appeals in New York, and another in the 3rd Circuit Court of Appeals in Philadelphia involving CBS’ broadcast of the 2004 Super Bowl halftime show in which Janet Jackson’s breast was bared, both challenge the government’s enforcement of its indecency statutes.
In a separate brief, a pair of former FCC commissioners, one of who served on the panel when the original indecency ruling was made, also said the commission has gone too far.
Glen Robinson, who was an FCC commissioner from 1974-76, and Henry Geller, the FCC’s general counsel from 1964-70, told the court that they are “dismayed” by the commission’s recent actions.
“We have been dismayed by a series of recent decisions that have transformed a hitherto moderate policy of policing only the most extreme cases of indecent broadcast programming into a censorship crusade that will put a chill on all but the blandest of program fare,” wrote Robinson, a law professor at the University of Virginia, and Geller, who is retired.
The commission made its initial indecency ruling in 1975 when it issued a declaratory order granting the complaint and holding that the Pacifica station in New York that broadcast George Carlin’s bit “Filthy Words” “could have been the subject of administrative sanctions.”
The Supreme Court in 1978 held that the commission could regulate indecent speech as the government has a compelling interest to protect minors.
As defined by the FCC, material is indecent if it “in context, depicts or describes sexual or excretory activities or organs in a patently offensive manner as measured by contemporary community standards for the broadcast medium.” Although obscene speech is not protected by the First Amendment, indecent speech is as the federal courts and the FCC have ruled that such speech can be aired safely from 10 p.m.-6 a.m.