Two former FCC officials say the FCC's current indecency enforcement regime is unconstitutional.
Saying indecency enforcement has morphed from a restrained effort to regulate "clear, flagrant instances of indecency language" by a few to an ever-expanding campaign against "ordinary radio and TV programming" that affects the many, Henry Geller and Glen Robinson have filed an amicus brief in CBS' challenge to the Janet Jackson/Justin Timberlake fine against CBS stations.
Both are veterans of the more restrained policy. Geller is former general counsel and special assistant to the chairman of the FCC in the 1960s, while Robinson was a commissioner in the mid 1970s.
Pointing out that they have been associated with indecency controversy in the past, including the Pacifica decision--the so-called "seven dirty words" decision--they say they have sympathy for the FCC's concern but that the FCC is on a censorship "crusade" that will chill even the blandest programming.
"We urge the court to take this occasion to hold that the Commission's expansive and aggressive new campaign of enforcement goes beyond the limitations assumed by the Supreme Court when it affirmed the FCC's indecency doctrine in 1978," they told the Third Circuit Court of Appeals in Philadelphia, "and violates the First Amendment."
The pair also filed in a similar brief support of Fox and CBS’ challenge to four indecency rulings issued last March, part of the FCC’s ramped up enforcement against language.
Both cases are being heard in federal appeals courts and could set the table for a Supreme Court challenge to some or all of the FCC’s indecency enforcement regime.