Fox has gotten support for its fight against the FCC's fleeting profanity crackdown from at least three former FCC Commissioners, both Democratic and Republican appointees. They say the FCC is chilling speech, effectively turning over indecency monitoring to the Parents Television council, and that the entire indecency enforcement regime should be rethought in a world where broadcasting is hardly uniquely pervasive.
Newton Minow, the Kennedy appointee who frequently called on broadcasters to improve their programming, and deregulatory Republican Mark Fowler, were of like minds on the FCC's wayward pursuit of profanity, joined by former Democratic Chairman James Quello in a brief filed with the Second Circuit.
That court sought new input after the Supreme Court threw out the Second Circuit's decision that the FCC's profanity crackdown was arbitrary and capricious.
They were joined in the brief by other former FCC commissioners and executives. In all, the group included two commissioners who were there in 1975 when the FCC found the "Filthy Words" monologue indecent in the Pacifica decision.
Joined by former aides and top staffers, the three First Amendment amigos (make that "Amici," since it is a friend of the court brief), minced no words.
While they said that they had "some sympathy" for the FCC's content concerns, they appeared to have no sympathy for its method of addressing them. "[T]he FCC’s enforcement policies have destroyed any expectations some of us had for moderation and restraint in this endeavor," they said, "and caused us to rethink our earlier involvement in this censorial regime."
Having done that re-thinking, the petitioners say that not just the FCC's crackdown on fleeting expletives--Fox was cited for swearing in an awards show--to other recent enforcement actions."Invalidating the fleeting expletive policy alone would only slightly raise the temperature of the chill on broadcast speech," they told the court. "Broadcasters would gain some protection against the occasional 'oops' moment on live broadcasts, but the Commission still would be free to roam the landscape of broadcast programming in search of indefinable words and images that it deems “indecent” – pitting its “artistic judgment” against that of broadcast programmers."
They also want the court to consider the continued disparate treatment of broadcast media vs. pay media like cable and satellite. "If such special treatment was ever justified because of the unique influence or pervasiveness of broadcasting, changes in the electronic media environment have made it no longer even remotely credible."
That puts one of the most iconic Democratic FCC chairs, Minow, on the opposite side of current Chairman Julius Genachowski, who has said the medium continues to be uniquely pervasive and warrants regulation, though he has said he prefers parental and marketplace solutions.
Speaking from decades of collective FCC experience, the peitioners point out that the Pacifica decision had essentially created a new, narrow, regulatory space, a time (ultimately 6 a.m. to 10 p.m.) and place (broadcast radio and TV) restriction on nonobscene content--obscene content is considered unprotected by the First Amendment.
Soon after the Supreme Court uheld the Pacifica decision, the FCC emphasized how narrow it had been. It denied a petition to reject a station license filed by Morality in Media against noncommercial WGBH Boston, saying the Pacifica decisions: "Afford this commission no general prerogative to intervene in any case where words similar or identical to those in Pacifica are broadcast over a licensed radio or television station. We intend strictly to observe the narrowness of the Pacifica holding.”
That narrow decision has been widened beyond recognition, they suggest, by the FCC's "crusade" against content, including "unmooring" the term indecency from its original meaning of "language that described or depicted sexual or excretory activities."
The result, they say, has been self-censorship "by risk-averse broadcasters who choose to steer clear of the landmines that the FCC’s uncertain jurisprudence has created by avoiding anything that might conceivably give offense."
They also argue the FCC has helped create the appearance of rampant broadcast indecency when the "hundreds of thousands of complaints" cited are mostly computer-generated from groups like the Parents Television Council, sometimes including duplicate complaints from the same person.
They say the complaint process has become so artificial that "it naturally prompts the question, why does the FCC not simply turn the monitoring function over directly to the Parent’s Television Council? The answer is simple: the FCC already has."
They also argue the commission has been unduly influenced by the pressure from Congress or some public gropus to crack down on indecency. "Members of the public have a right to complain; that is part of their First Amendment rights. But if the First Amendment means anything, it means that their right to complain is not a license to deprive speakers of their right to speak or listeners/viewers of their right to hear or see the speaker’s message."
In addition to the three former chairmen, also signing on to the brief: Jerald Fritz, senior VP and general counsel for Allbritton Communications, who served as legal advisor and chief of staff to Fowler; former FCC general counsel Henry Geller; Glen O. Robinson, David A. and Mary Harrison Distinguished Professor of Law Emeritus, University of Virginia and FCC Commissioner from 1974 to 1976; Kenneth G. Robinson, a Washington communications attorney, was senior legal advisor to FCC Chairman Alfred Sikes.