Times Have Changed in Broadcast Indecency, Groups Tell Supreme Court
The facts underpinning the Supreme Court’s rationale for allowing regulation of broadcast speech have withered in the 33 years since the court’s landmark FCC v. Pacifica Foundation ruling, a coalition of public interest groups said in a brief filed with the court last week. The Center for Democracy and Technology, Cato Institute, Electronic Frontier Foundation, Public Knowledge and Tech Freedom were among several parties to file amicus briefs arguing the court should uphold a lower court’s ruling in Fox v. FCC that tossed out the commission’s indecency rules.
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"Today’s world of converged, customizable video media would have seemed like science fiction to the Pacifica court,” the brief said. “It is well past time for the law to recognize the world has changed by ending the FCC’s censorship of speech that is broadcast on television.” Broadcasters, the Student Press Law Center (SPLC) and College Broadcasters Inc. (CBI), also argued the court should eliminate the FCC’s policy on so-called “fleeting explicatives."
Broadcast speech should be just as protected as speech on other media, the public interest groups said. “Broadcast media no longer has ‘unique’ characteristics that justify affording diminished protections to speech, that in other contexts, would be fully protected under the First Amendment,” said Cato Institute, et. al. New technology has displaced traditional broadcasting as means of mass communications and the number of Americans relying exclusively on over-the-air broadcasts for TV has plummeted, they said. Broadcasting is no longer “pervasive,” as it was defined in Pacifica, they said. And under strict constitutional scrutiny, the FCC’s indecency rules can’t stand up, they said. “No matter how compelling the government’s interest in child protection or how narrowly tailored the FCC’s censorship, governmental speech controls must yield to widely available parental controls as less restrictive means to achieve that goal."
The fact that broadcast TV is accessible to children shouldn’t matter, the NAB and Radio TV Digital News Association (RTDNA) said in a joint brief. “This court has found that other media that are at least as accessible to children -- such as video games -- may not be censored.” The FCC’s vague rules have already affected the way broadcasters decide what to air, pointing to examples of the PBS documentary series Frontline which were edited before being distributed to affiliates. “The chilling effects of the Commission’s policies are often felt by small, local broadcasters,” they said. “Broadcasters have been forced to rethink whether and how to present local and national news and sports,” they said. “Live reports from journalists embedded with U.S. troops have been suppressed and broadcast footage from warzones has been withheld from broadcast.” Some broadcasters are refusing to cover the Occupy Wall Street Protests live over concerns that their microphones may pick “a stray explicative and subject the station to fines,” the NAB and RTDNA said.
College broadcasters are also suffering as a result of the FCC’s vague rules and enforcement, the SPLC and CBI said in a joint brief. “College broadcasting is supposed to be a laboratory for experimentation, and is supposed to be a forum for presenting live talk, news and sporting events,” SPLC Executive Director Frank LoMonte said. “But the risk of a five-figure or six-figure fine that could put a station out of business really discourages students from airing the very type of broadcasts their audiences most want.”