Any Changes to FCC Indecency Rules Will Be Struck Down by Courts, Say Public Interest Groups
FCC indecency rules are doomed to be struck down by the Supreme Court, said a group of public interest organizations that often disagree on other policies and their staff in follow-up interviews. Public Knowledge, the Center for Democracy and Technology, Electronic Frontier Foundation and TechFreedom’s filing (http://bit.ly/13TElLx) came Wednesday, when several other organizations also commented on the last day for comments on the commission’s proposed “egregious” standard for enforcing indecency rules (CD April 2 p1). “Anything the FCC does will be tied up in court so long there won’t be any broadcasters by the time it’s done,” said Berin Szoka, president of TechFreedom. “Indecency regulations should be something parents do, not the FCC.”
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An indecency foe who wants the FCC to uphold such rules agreed that court intervention is likely unless the agency enforces current rules. Parents Television Council Public Policy Director Dan Isset said any changes to the FCC policy will invite court intervention, meaning the FCC must fully enforce the current rules. “Any change to the rule at this point would be litigated by the networks,” said Isset. “So the status quo is a good thing, but doing nothing is not an option ... this is a mess that could be solved by reasonable enforcement."
The courts will find “there is no longer any constitutional basis for any form of indecency censorship at all,” said the four public interest groups led by TechFreedom. Technological change has overwhelmed the reasoning behind the Supreme Court’s 1978 Pacifica decision, they said. The ruling upheld the commission’s power to regulate broadcasting based on the medium’s being both “pervasive” and “invasive.” While “broadcasting once may have been ‘uniquely pervasive,’ today it competes with a variety of other media sources, and operates in a radically transformed technological environment,” said the groups. They said the broad scope of media also means broadcast TV is no longer invasive, since now “viewers have an abundance of choice and control” when it comes to video programming.
The recent record of the Supreme Court shows a trend of both right- and left-leaning justices supporting the First Amendment, said Public Knowledge Senior Staff Attorney John Bergmayer, citing the court’s ruling in Citizens United. He said the FCC will likely take that trend into account in formulating changes to its indecency policy. Szoka said he doubts the policy will ever be changed outside of judicial action. “It’s difficult for me to imagine any FCC chairman is going to be able to change the way the commission regulates indecency,” said Szoka. “It’s a political football."
However, University of Miami Law Professor Lily Levi said the Supreme Court’s “reticence” on previous rulings shows the justices have taken pains to avoid treating indecency regulation as a First Amendment issue, and will continue to do so. “The Fox I and Fox II opinions reveal a Court unlikely to overrule its prior broadcast indecency precedent -- FCC v. Pacifica -- or to find the Commission’s overall indecency regime unconstitutional,” she commented in docket 13-86 (http://bit.ly/13TEpLd).
National Religious Broadcasters said the FCC could avoid another court challenge to indecency rules by adopting firm rules explicitly defining a violation. “Setting defensible standards in the first instance regarding indecency has been difficult enough for the Commission; but predicting the circumstantial factors that would constitute severe as opposed to minimal indecent offensiveness would be a Herculean task” (http://bit.ly/16hixK8). To accomplish this, the commission should rule that all indecent content between 6 a.m. and 10 p.m. is in violation, including “fleeting expletives and/or momentary nudity,” said NRB. The severity of the violation should be used only to determine the level of punishment, not whether a violation had occurred, it said. Its proposal also includes exceptions for news content and material of “serious value,” said the filing. “NRB advocates a more objective standard; one that rests on the basic elements in the Commission’s current rule."
Levi believes the policy should change at the commission level, she told us. The current indecency rule has “a chilling effect, not just in its application by the FCC, but also in zero-tolerance policies by broadcasters” and other side effects in the industry, she said. The four public interest groups said the commission should “do as little harm as possible to First Amendment values by quickly issuing a new enforcement policy that provides clarity and predictability to broadcasters.” Though PTC doesn’t believe the commission should change its policy, the organization said recent comments before the Senate Commerce Committee by FCC Chairman nominee Tom Wheeler (CD June 19 p1) -- asking if the commission could “do better” on indecency -- show that the commission’s enforcement of those rules could change. Public Knowledge isn’t sure of Wheeler’s intent on indecency, but is trying to sway him to its way of thinking, Bergmayer said. “In a way, that letter is addressed to him,” he said of the joint filing.