Guilds, ACLU challenging FCC regulations

Groups supporting networks' legal challenge of new indecency rulings

Actors, writers, directors, the ACLU and even former FCC officials are weighing in against the Federal Communications Commission in a legal challenge that could dramatically alter the regulatory landscape on allegedly indecent broadcasts.

Screen Actors Guild, Writers Guild of America (both East and West), Directors Guild of America and the American Federation of Television and Radio Artists joined the American Civil Liberties Union and a host of other organizations such as the Films Arts Foundation and the PEN American Center in filing a friend-of-the-court brief supporting three major broadcast networks’ legal challenge of recent FCC indecency rulings.

Perhaps most significantly, two former senior FCC officials — including one former commissioner — also filed briefs in support of the nets, saying the agency’s policy on broadcast indecency “has evolved from a restrained effort to regulate clear, flagrant instances of indecent language by a handful of broadcast licensees and broadcast performers into an ever-expanding campaign against ordinary radio and television programming.”

These officials also filed similar briefs supporting CBS’ separate challenge of the FCC’s indecency fine of $550,000 against the net for the Janet Jackson breast flash at the 2004 Super Bowl.

Last March the FCC cited four broadcasts — CBS’ “The Early Show,” ABC’s “NYPD Blue,” and Fox’s live broadcasts of the 2002 and 2003 Billboard Music Awards — for indecent language. All three nets announced legal challenges; NBC joined as intervenor. Alphabet later withdrew from the suit after the FCC decided to drop the indecency finding against “NYPD Blue.” The agency also dropped the finding against “The Early Show,” but CBS remains party to the suit.

The last time the FCC faced a serious legal challenge to its authority was in the 1970s, when the Supreme Court narrowly upheld the commission’s authority to police airwaves. Nets are alleging that the agency has overstepped the tightly circumscribed authority outlined by the 5-4 opinion deciding that crucial case.

Briefs filed Thursday agree with the nets.

“The FCC’s arbitrary censorship system is no more tolerable than allowing government agents to tear pages out of library books,” Steven R. Shapiro, the ACLU’s national legal director, said in a statement.

“Artists need to know that they can exercise their First Amendment rights without fear of sanctions imposed by the government,” said AFTRA general counsel Thomas R. Carpenter. “A vague and ill-defined standard of decency is a threat to the freedom of expression that AFTRA members and all Americans hold dear.”

In their brief filed jointly, Glen Robinson, an FCC commissioner from 1974-76, and Henry Geller, the FCC’s general counsel from 1964-70, wrote: “In pursuit of an otherwise laudable policy of protecting children against exposure to extremely offensive language, the commission has embarked on an enforcement program that has all the earmarks of a Victorian morals crusade.

“To effectuate its new clean-up-the-airwaves policy, the commission has radically expanded the definition of indecency beyond its original conception; magnified the penalties for even minor, ephemeral images or objectionable language; and targeted respected television programs, movies, even non-commercial documentaries,” brief continued.

A joint brief filed by think-tanks the Progress and Freedom Foundation and the Center for Democracy & Technology carried an ominous tone: “The FCC’s increasingly aggressive attempts to control speech on the radio and television are on a collision course with a wave of technological change that will soon render the commission’s involvement in these matters obsolete.”

The FCC has not yet filed its brief in the case. Oral arguments are set for Dec. 20 in the U.S. Court of Appeals for the 2nd Circuit in New York.