Posted by chicagomedia.org on August 08, 2008 at 13:06:36:
ACLU, DGA, AFTRA Gang Up on FCC
American Civil Liberties Union, Directors Guild of America, American Federation of Television and Radio Artists, other groups tell Supreme Court FCC 'has no business regulating any speech short of outright obscenity.'
The American Civil Liberties Union, flanked by unions representing directors and actors, told the Supreme Court the Federal Communications Commission has no business regulating any speech short of outright obscenity.
The ACLU -- joined by the Directors Guild of America, the American Federation of Television and Radio Artists and several others -- asked the Supreme Court to rethink the FCC's entire indecency-enforcement regime, saying, "No agency should be given such power under the constitution."
The court is currently hearing the FCC's challenge to a lower-court ruling overturning the FCC's decision to find Fox TV stations in violation of indecency rules for airing swearing on a Billboard Awards show.
ACLU et al said the court must go beyond a narrow ruling on whether or not the FCC violated the Administrative Procedures Act by not giving broadcasters sufficient notice of its decision to start finding fleeting profanities indecent.
Instead, they said, the court "cannot avoid the constitutional issues that are at the heart of this case." And if it does not avoid those issues, the petitioners said, "The entire indecency regime, in light of 30 years' experience, can no longer be justified by any constitutionally permissible construction of the statute."
The groups continued, "Technological developments since Pacifica [the Supreme Court decision upholding the FCC's indecency authority] indicate that the rationale for censorship of nonobscene broadcasting has lost whatever persuasive force it once may have had. Given cable television, the Internet and other electronic media today, broadcasting is no longer 'uniquely pervasive' and 'uniquely accessible to children.'"
They also argued that the discretion over what content is or isn't indecent inherent in the FCC's indecency-enforcement regime is "unconstitutional censorship."
But the unions stopped short of challenging the spectrum-scarcity rationale that underpins broader regulation of broadcasting. "Whatever one thinks of the scarcity rationale in the modern media world, there is surely a difference between structural rules designed to promote more speech" -- like those that prevented networks from dictating programming to affiliates -- "and censorship rules based on broad, shifting and culturally driven criteria such as 'patent offensiveness,'" they argued.
Minow, Fowler: Strip FCC of Indecency-Enforcement Authority
Former FCC chairmen Newton Minow, Mark Fowler, former commissioner James Quello ask Supreme Court to strip FCC of power to regulate indecency entirely.
A trio of former Federal Communications Commission chairmen, including the most iconic critic of TV content and a symbol of deregulation, joined to ask the Supreme Court to strip the FCC of its power to regulate indecency entirely, saying that it is on a "Victorian crusade" that hurts broadcasters, viewers and the Constitution.
Former Democratic chairman Newton Minow may have famously dubbed TV a "vast wasteland" back in the 1960s, but he is ready to let TV programmers in this century have more say over content if the alternative is the current FCC.
Seconding that opinion was former Republican chairman Mark Fowler, who once likened TV to a toaster with pictures and became a symbol of the deregulatory 1980s.
Also weighing in on a brief to the court Friday, a copy of which was obtained by B&C, was James Quello, former acting chairman and longest-serving Democratic commissioner.
Citing the predictions of a political scientist back in the early 1980s, they called the Supreme Court’s 1978 Pacifica decision that justified the FCC's indecency-enforcement powers a legal time bomb that had exploded into radical censorship.
They argued that the commission "has radically expanded the definition of indecency beyond its original conception; magnified the penalties for even minor, ephemeral images or objectionable language; and targeted respected television programs, movies and even noncommercial documentaries."
The trio, joined by other former FCC commissioners and staffers including Henry Geller, former general counsel at the FCC; Glen O. Robinson, a former commissioner; Kenneth G. Robinson, a former FCC legal adviser; and Jerald Fritz, senior VP and general counsel for Allbritton Communications, filed an amicus brief in the FCC's challenge to a lower-court ruling that the commission's indecency finding against swearing on Fox awards shows was arbitrary and capricious and a violation of the Administrative Procedures Act. That act requires regulators to sufficiently justify their decisions and forewarn regulated industries.
The chairmen agreed that it violated the act but, like the broadcast networks in their brief to the court, said the Supremes needed to go farther.
They said the court's work would be incomplete if it simply struck down the "fleeting expletives" policy, arguing that the FCC's indecency calls in cases of nudity and nonfleeting profanity were inconsistent and that the commission was using "context" as a "talisman to ward off serious questions about the extreme subjectivity of the agency's determinations."
Also mirroring the arguments of ABC, CBS, Fox and NBC, the chairmen argued that broadcasting is no longer uniquely pervasive or accessible to children given the Internet and multichannel video.
"It is time for the Court to bring its views of the electronic media into alignment with contemporary technological and social reality," they said. And that means getting the FCC entirely out of the business of regulating indecent content, they added.
"As former regulators, we appreciate that the FCC is in an uncomfortable position, buffeted by the turbulent passions of anxious parents and threats from excited congressmen," they added. "But that is precisely why the matter must be taken out of the agency's hands entirely."
(Broadcasting & Cable)