SPLC, CBI ask Supreme Court to void 'vague' FCC broadcast indecency regulations

FOR IMMEDIATE RELEASEContact: Frank D. LoMonte, executive director703.807.1904 / director@splc.org

The Student Press Law Center, a nonprofit advocate for theFirst Amendment rights of the student media, joined College Broadcasters, Inc.,in urging the U.S. Supreme Court Thursday to strike down the Federal CommunicationsCommission’s policy of fining broadcasters for “fleeting expletives,” sayingthat the policy is forcing student broadcasters to censor themselvesunnecessarily.

In a friend-of-the-court brief filed Thursday, the SPLC andCBI ask the Court to declare that the FCC’s post-2001 crackdown on swear-wordsin over-the-air broadcasting violates the First Amendment. The brief arguesthat the FCC has failed to give broadcasters clear guidance on what uses ofprofanity or nudity will lead to fines – which can range up to $500,000 – andwhen “indecent” content will be deemed justified by the artistic or news valueof the broadcast.

“The Commission’s current approach chills collegebroadcasters into self-censoring their speech so as to leave a broad buffer beforereaching the indistinct boundary where indecency may (or may not) lie. This isthe hallmark of an unconstitutionally vague regulatory regime,” said the brief,filed in support of Fox Broadcasting in its long-running dispute with the FCCover “fleeting expletives” in live broadcasts of celebrity award shows. Thebrief points out that highly newsworthy content – such as Richard Nixon’s OvalOffice tapes – may contain strong profanity of the kind that the Commission hasrecently decided is punishable if broadcast over public airwaves outside the“safe harbor” hours between 10 p.m. and 6 a.m.

“College broadcasting is supposed to be a laboratory forexperimentation, and is supposed to be a forum for presenting live talk, newsand sporting events. But the risk of a five-figure or six-figure fine thatcould put a station out of business really discourages students from airing thevery type of broadcasts that their audiences most want and that offer the mostdiversity in programming,” said attorney Frank D. LoMonte, executive directorof the SPLC.

LoMonte said the SPLC felt it was essential for the studentmedia to be represented in the case because the FCC has argued thatbroadcasters are well-funded, sophisticated entities with ample financialresources to purchase and operate “delay” technology to catch stray profanities– ignoring the reality at small campus stations. 

The brief was prepared by SPLC Legal Fellow Robert Arcamonawith the assistance of Washington, D.C., attorney volunteer Greg Smith of the LawOffices of Gregory S. Smith, a veteran federal litigator who has worked in theWhite House Counsel’s Office and for the Senate Judiciary Committee.

“College Broadcasters, Inc. believes that the FCC’sinconsistent enforcement of indecency standards disproportionately impactsstudent broadcasters, almost all of whom lack the resources both to ensure thatno fleeting expletives slip out over our airways and to absorb a massive finefor such an accident. Furthermore, college broadcasters – by design – oftenserve underrepresented populations whose idea of ‘community standards’ may notentirely overlap with that of the general public, or the FCC,” said GregoryWeston, president of CBI.

“As an organization charged with educating the nextgeneration of broadcasters, CBI finds that the FCC’s inconsistent standardshinder our ability to teach well-meaning students what is and is not consideredindecent, leading them to either unknowingly violate the FCC’s standards or toengage in self-censorship to avoid any chance of doing so,” Weston said.

The case, FCC v. FoxTelevision Stations, Inc., originated with the FCC’s imposition of finesagainst television networks for blurted curse-words heard on the BillboardMusic Awards during 2002 and 2003. Since the Supreme Court recognized the FCC’sauthority to penalize “indecent” speech in the landmark 1978 case of FCC v. Pacifica Foundation – involvingGeorge Carlin’s “filthy words” monologue – the Commission has expanded its viewof what is punishable. The Commission decided in 2001 that even a singleswear-word or reference to sexual acts could be punished as indecent.

In 2010, the 2nd U.S. Circuit Court of Appeals in New York agreedwith Fox that the Commission’s broadcast indecency regulations had becomeunconstitutionally vague, giving no fair warning to anticipate when a finemight be imposed. In an opinion issued last week, the 3rd U.S. Circuit Court ofAppeals in Philadelphia agreed that – as applied to the infamous Janet Jackson“wardrobe malfunction” during the 2004 Super Bowl halftime broadcast – the FCCoverstepped the Constitution in imposing fines for the “fleeting” broadcast ofnudity or profanity.

The Supreme Court is expected to hear the Fox case during early 2012 and issue adecision by the end of June 2012.

More informationabout the work of the Student Press Law Center is available on its website atwww.splc.org.