MAP to Supremes: Pacifica Can Stand and FCC Indecency Enforcement Regime Still Fall

Argues that the FCC's policy is unconstitutionally vague and violates due process

By John Eggerton -- Broadcasting & Cable, 11/3/2011 3:04:38 PM

TV and music content creators and their broadcast distributors are on the same page when it comes to opposing the FCC's indecency enforcement regime, but differ on how the Supreme Court should approach its review of those regs.

That was clear in a Media Access Project (MAP) brief filed Thursday with the High Court in support of Fox in the case involving the FCC's indecency finding against Fox stations for profanity on a Billboard awards show now almost a decade ago. Both producers and networks support Fox and oppose the FCC indecency enforcement regime as currently constituted, which they argue is unconstitutionally vague, but the networks have long signaled they believe the Supremes should take this opportunity to look deeper into the constitutional issues surrounding regulation of broadcast content than would the content producers and creators represented by MAP.

MAP filed on behalf of the Center for Creative Voices in Media and the Future of Music Coalition, which represents creators and producers of TV and shows and music.

That brief argues that the FCC's policy is unconstitutional under existing Supreme Court precedent (the Pacifica decision, in which the court upheld the FCC's finding that George Carlin's "Filthy Words" monologue was indecent), and that the court need not overturn Pacifica to find the FCC's current indecency policy unconstitutional. Although it does not take a position on whether Pacifica should remain the law of the land, it does concede in the conclusion that the court may decide to invalidate Pacifica, and MAP does not have a problem with that, but it wants to make it clear the court need not go that far to find the FCC policy unconstitutional.

The brief argues that the FCC's indecency enforcement policy is unconstitutionally vague and violates due process, infirmities that cannot be saved by relying on the Pacifica decision, which it says is in any event a narrow opinion that directed the FCC to "tread lightly."

MAP concedes the FCC is permitted to regulate indecency under Pacifica, just not the way it has been doing it since it decided to crack down on fleeting, and not-so-fleeting -- nudity and profanity. "For individual artists and broadcasters seeking to make judgments about content, the Commission‘s decisions not only fail to guide but constitute a blindfold, and a muzzle," MAP says.

MAP does, however, make it very clear that the groups do not support the court re-examining the Red Lion Decision, which underpins the FCC's regulation of broadcast content. Broadcast networks have argued that should be up for review in the Fox case, but MAP says that Red Lion is about promoting additional speech, not suppressing it. The networks also wanted the Supremes to revisit Pacifica. "This Court need not, and should not, question Red Lion or its scarcity rationale," the brief argued, saying it was "irrelevant" to the case.

That is a dramatically different take than that of the broadcast networks in a joint filing back when the Supreme Court first heard the Fox profanity case back in 2008. ""Whatever its validity when Red Lion affirmed it in 1969 or in 1987 when the commission rejected it [the fairness doctrine] without reservation, today the scarcity rationale is totally, surely and finally defunct," the networks said in that filing.

Red Lion is the case in which the Supreme Court used spectrum scarcity as a rationale for upholding the since-expunged fairness doctrine, which required broadcasters to seek out opposing viewpoints on controversial issues.

Center for Creative Voices advisory board includes Stephen Bochco, Warren Beatty, Vin Di Bona, Diane English, and Blake Edwards. Di Bona's America's Funniest Home Videos was once the target of an unsuccessful FCC indecency complaint over a pacifier lodged in a baby's backside. The FCC said the scene only met part of its indecency test.