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.'

By John Eggerton -- Broadcasting & Cable, 8/7/2008 3:56:00 PM

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.