First Amendment Coalition Challenges FCC Broadcast Indecency Standard and Questions Enforcement Practices

In early August Davis Wright Tremaine LLP filed comments with the FCC challenging recent agency actions enforcing its broadcast indecency standard and asking the Commission to conduct a broad review of its policies. The comments were filed on behalf of the First Amendment Coalition, an ad hoc confederation of broadcast licensees and public interest groups concerned about the First Amendment implications of the FCC programming regulation. Members of the Coalition include Beasley Broadcast Group, Inc.; Citadel Communications Corporation; Greater Media, Inc.; Radio One, Inc.; the First Amendment Project; the National Coalition Against Censorship; and the People for the American Way Foundation.

The Coalition’s comments responded to an April 3 Notice of Apparent Liability for Forfeiture issued to Infinity Broadcasting Operations, Inc., which contained warnings to all broadcast licensees regarding compliance with the rules governing indecency. The group asked the FCC to rescind statements directed to all broadcasters threatening potential license revocations for “serious violations” of the FCC’s indecency policies. Also, noting that the Commission has begun to shift the burden of proof in its evaluation of indecency complaints, the Coalition asked the Commission to commence a Notice of Inquiry to examine the fundamental constitutional issues raised by enforcement of its indecency rules.

The Coalition comments noted that the FCC’s recent actions appear to be based on the mistaken assumption that it may adopt more onerous procedures and more aggressively restrict “indecent” speech than it has in the past. However, the opposite is true. Courts have invalidated indecency restrictions in print, in the mail, in the public forum, on cable television and on the Internet. The narrow exception for broadcasting carved out 25 years ago in FCC v. Pacifica Foundation, 438 U.S. 726 (1978) is limited to the facts of a case in which the Commission did not impose formal sanctions, and no majority of the Court approved the test articulated by the plurality. Since then, a solid majority of Justices has found the language of the indecency test to be hopelessly vague and uncertain. E.g., Reno v. ACLU, 521 U.S. 844 (1997). This development, along with evolution of the media landscape and changes in audience expectations, requires the Commission to reevaluate the constitutionality of its indecency policies and to redefine what constitutes “contemporary community standards for the broadcast medium.”

The Coalition suggested that an honest evaluation would show that the indecency standard cannot withstand even modest constitutional scrutiny. A vague standard for restricting speech is antithetical to a free society because it places unbridled discretion in the hands of the government while chilling the expression of those who must try to comply with the law. The comments explained that the indecency standard presents a true paradox. The speech it regulates is constitutionally protected, yet the standard in practice provides no reliable shield from official whims.

The Coalition comments illustrated what they called the “emptiness” of the indecency standard by comparing it with the law of obscenity as it existed before the Supreme Court imposed First Amendment constraints on its scope. Drawn from Victorian Era case law, obscenity was defined as material that tends to corrupt the morals of a young or immature person. For much of the 20th century this standardless formulation led to the censorship of countless literary classics until courts, applying the First Amendment, held that works must be judged “as a whole” based on their effect on the average person, and that serious literary, artistic, political, or scientific merit was a complete defense. The Supreme Court stressed that the government may not reduce the general population to reading only what is fit for a child. Because of the discipline of the First Amendment as imposed by courts during the last half of the 20th century, obscenity law now provides greater protection for speech than does the indecency standard even though obscene speech is said to be unprotected by the Constitution, while indecency supposedly is protected. Where obscenity law requires review of the work as a whole, the test for indecency asks only if a broadcast contains “some” patently offensive material. Likewise, indecency is measured by the presumed impact of a broadcast on children—not the average person—and serious merit does not preclude a finding of indecency. Finally, unlike obscenity law, the procedural safeguards used by the FCC to protect speech from arbitrary action are lax and getting laxer.

The Coalition comments cited recent decisions of the Supreme Court and of lower courts which confirm that the indecency standard could not survive rigorous constitutional review. While these decisions did not examine the indecency regime in the context of broadcasting, their analysis undermines the key premises of the test the FCC historically has used to enforce its rules. These decisions are particularly germane, since no majority of the Supreme Court ever endorsed the broad application of the Pacifica standard, and lower courts pointedly refrained from analyzing the logic of the test. Yet when the Supreme Court finally deconstructed the language of the indecency rule, it held that it was unconstitutional because of vagueness. Since then, virtually every court that has ruled on similar laws has held that they are invalid.

The Coalition suggests that the Commission may not continue to rely on First Amendment law as it applied to broadcasting in 1927 or 1934 because Congress authorized it to regulate “indecent” or “profane” broadcasts in those years. Throughout the same period, books and films were censored in much the same way as broadcasting, but the law no longer permits such arbitrary restrictions. In the decades following the formation of the FCC, Constitutional law evolved to provide far greater protection for free expression. Accordingly, the comments suggest that the Commission’s broadcast indecency standard must be reexamined under current standards governing the regulation of speech.

The comments note that FCC’s experience with the indecency standard confirms its vagueness. There is no body of court decisions interpreting or applying the indecency standard in particular cases and the FCC’s rulings provide no real assistance. The vast majority of indecency decisions are unpublished informal letter rulings that are stored in individual complaint files at the FCC. For that reason, the Commission in April 2001 issued a Policy Statement purporting to clarify its criteria governing enforcement of the indecency standard. The Policy Statement listed various cases, but because each case was decided based on its individual facts, the Commission could not articulate specifically what factors will distinguish one case from another. As a consequence, the FCC found itself unable to apply its own standard consistently or understandably in decisions issued after the Policy Statement was made public. It issued forfeitures that it later had to rescind, yet the works and artists affected by its mistakes were effectively banned from the airwaves for periods of up to 18 months. The Coalition concludes that the Commission lacks a reliable test for indecency—particularly as it relates to assessing literary or artistic merit – yet the agency steadfastly has refused to issue declaratory rulings to clarify its position, or to otherwise make the indecency standard more precise.

The Coalition comments suggested that the key factor that has prevented the FCC’s indecency policy from being a constitutional catastrophe has been the Commission’s sense of restraint. But the agency’s reluctance to act as a board of censors appears to be waning, as demonstrated by the Infinity forfeiture order and other recent actions. The comments state that by threatening to revoke broadcast licenses and by requiring broadcasters to prove their innocence in the face of unsubstantiated complaints, the FCC has lost sight of the narrowness of the Pacifica holding. Consequently, the Coalition requested that the Commission withdraw its threat regarding license revocations in this proceeding, and to conduct a thorough review of the constitutionality of its indecency policies in light of current social and technological conditions.