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Writers, Filmmakers, Performers, and Free Speech Groups Urge Court to Reject FCC Censorship

FOR IMMEDIATE RELEASE

November 30, 2006

CONTACT: Paul Silva, ACLU, (212) 549-2689 or media@aclu.org; Marjorie Heins, Free Expression Policy Project, Brennan Center for Justice, (212) 992-8847, Marjorie.heins@nyu.edu; Brian Newman, ReNew Media, (212) 274-8080, bnewman@renewmedia.org

NEW YORK - New standards adopted by the Federal Communications Commission to censor "indecency" on the airwaves are overly vague and unconstitutional, a coalition of 20 free speech organizations, community broadcasters, filmmakers, performers and writers argued in a legal brief filed today.

In the friend-of-the-court brief, the groups urged the Second Circuit Court of Appeals to overturn an FCC ruling issued earlier this year that applied new standards for censoring indecency and profanity to complaints received between 2002 and 2005. The groups urged 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 FCC's new and ever-shifting rules censoring 'profanity' and 'fleeting expletives' on the airwaves have no place in our free, diverse and pluralistic culture," said Marjorie Heins, Coordinator of the Free Expression Policy Project at the Brennan Center for Justice, who prepared today's brief. "The FCC's attempted distinctions among various common words are capricious and irrational. The whole indecency and profanity regime should be struck down."

In today's legal brief, the groups say that the FCC standards are not only overly broad, but inconsistent. For example, 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, supposedly applying the same standards, it condemned Martin Scorsese's PBS documentary The Blues for including similar fleeting expletives. Substituting their judgment for Scorsese's, the FCC commissioners said that the expletives were artistically necessary in Saving Private Ryan but not in The Blues.

"The FCC's arbitrary censorship system is no more tolerable than allowing government agents to tear pages out of library books," said Steven R. Shapiro, National Legal Director of the American Civil Liberties Union, which joined today's brief. FCC censorship only applies to the airwaves.

The new rules have already caused some non-commercial stations to self-censor because they cannot afford to pay the enhanced legal fines that may now be imposed by the FCC. PBS recently bleeped soldiers' language from the war documentaries A Soldier's Heart and Return of the Taliban, and from Frontline's The New Asylums. Language in PBS's documentary on terrorism in America, The Enemy Within, was purged even though it documented the particular words used by an informant to threaten a suspect. Rocky Mountain PBS canceled the historical documentary Marie Antoinette because it included sexually suggestive drawings.

The case before the Second Circuit, Fox Television v. FCC, began after the FCC issued an "Omnibus Order" in March condemning ten programs as indecent or profane, and exonerating more than a dozen others. Four rulings - against an episode of NYPD Blue, The Early Show, and two Billboard Music Awards broadcasts - were not accompanied by fines, and therefore could be directly appealed to the court.

In the NYPD Blue case, the agency said that the word "bullshit" was not permissible, but allowed the word "dickhead." After the appeals court allowed the FCC's request to reconsider its rulings, the Commission changed its position on NYPD Blue and The Early Show but reaffirmed the rulings against the two Billboard programs.

Among the artists' groups represented in today's brief are the Directors Guild of America (DGA), Screen Actors Guild (SAG), Writers Guild of America East (WGAE), Writers Guild of America West (WGAW), PEN American Center and the American Federation of Television and Radio Artists (AFTRA).

"Artists need to know that they can exercise their First Amendment rights without fear of sanctions imposed by the government," said Thomas R. Carpenter, General Counsel and National Director of Legislative Affairs for AFTRA. "A vague and ill-defined standard of decency is a threat to the freedom of expression that AFTRA members and all Americans hold dear."

In addition to the unions and guilds, the Brennan Center, the ACLU, and PEN American Center, today's brief was joined by American Booksellers Foundation for Free Expression, Creative Coalition, Film Arts Foundation, First Amendment Project, International Documentary Association, Minnesota Public Radio|American Public Media, National Alliance for Media Arts and Culture, National Coalition Against Censorship, National Federation of Community Broadcasters, New York Civil Liberties Union, Re:New Media, and Working Films.

Today's brief is online at http://www.fepproject.org/courtbriefs/FoxvFCC.pdf
Note: Some computers have trouble opening large PDF files. If this happens, you can right-click, then highlight "save link as" and download the PDF to a folder on your computer.

Update: Two other friend-of-the-court briefs were filed in this case: A brief by the Center for Democracy and Technology and Adam Thierer of the Progress & Freedom Foundation showed how the FCC manipulated its statistics to inflate the number of "indecency" complaints - more than 99% of which were generated by the Parents Television Council - and explained why the agency is out of touch with "contemporary community standards" in entertainment.
A brief by former FCC officials Glen Robinson and Henry Geller argued that the FCC's "demonstrated responsiveness to political pressures from Congress and activist citizen groups" and its indifference to "the chilling effect problem arising from uncertain enforcement of an ill-defined concept" show that it is time for the courts "to put an end to this experiment with indecency regulation."

On June 4, 2007, the U.S. Court of Appeals for the Second Circuit decided that the FCC's "fleeting expletives rule" is "arbitrary and capricious" and also suggested that the entire FCC censorship regime violates the First Amendment. See "A Huge Victory for Free Speech on the Airwaves" for details.

To read about the oral argument before the Court of Appeals on December 20, 2006, go to http://www.fepproject.org/news/FCC12-20-06.html


The Free Expression Policy Project began in 2000 as a project of the National Coalition Against Censorship, to provide empirical research and policy development on tough censorship issues and seek free speech-friendly solutions to the concerns that drive censorship campaigns. In 2004-2007, it was part of the Brennan Center for Justice at NYU School of Law. Past funders have included the Robert Sterling Clark Foundation, the Nathan Cummings Foundation, the Rockefeller Foundation, the Educational Foundation of America, the Open Society Institute, and the Andy Warhol Foundation for the Visual Arts.

All material on this site is covered by a Creative Commons "Attribution - No Derivs - NonCommercial" license. (See http://creativecommons.org) You may copy it in its entirely as long as you credit the Free Expression Policy Project and provide a link to the Project's Web site. You may not edit or revise it, or copy portions, without permission (except, of course, for fair use). Please let us know if you reprint!