ACLU Attacks FCC

Stephen Yagielowicz
LOS ANGELES — The American Civil Liberties Union (ACLU), along with a variety of other groups, has issued a statement to the U.S. Supreme Court, claiming that the Federal Communications Commission (FCC) lacks the authority to regulate non-obscene speech.

The groups claim that the FCC's practice of deciding what or isn't "decent" amounts to "unconstitutional censorship."

The move was prompted by an FCC action challenging a lower-court's overturning of its claim that Fox Television aired a "fleeting indecency" during a Billboard Awards show.

The Amicus Curiae was filed by The American Civil Liberties Union; The New York Civil Liberties Union; American Booksellers Foundation For Free Expression; American Federation Of Television And Radio Artists; Directors Guild Of America; First Amendment Project; Minnesota Public Radio/American Public Media; National Alliance For Media Arts And Culture; National Coalition Against Censorship; National Federation Of Community Broadcasters; Pen American Center; and Washington Area Lawyers For The Arts; and asks the Supreme Court to evaluate the FCC's decency-enforcement rules, stating that "no agency should be given such power under the constitution."

Part of the controversy surrounds the issue of a potential violation of the Administrative Procedures Act by the FCC, since it is claimed that the Commission did not give the nation's broadcasters sufficient notice that brief, unexpected profanities would be fined.

"The entire indecency regime, in light of 30 years' experience, can no longer be justified by any constitutionally permissible construction of the statute," the brief declared.

"Technological developments since Pacifica [a Supreme Court decision that upheld the FCC's authority] indicate that the rationale for censorship of non-obscene broadcasting has lost whatever persuasive force it once may have had," stated the brief. "Given cable television, the Internet and other electronic media today, broadcasting is no longer 'uniquely pervasive' and 'uniquely accessible to children.'"

The brief didn't call into question the role of the Commission in regulating the broadcast spectrum, which is a finite resource that requires governmental management, but only its role in determining the appropriateness of the content delivered over the airwaves.

"There is surely a difference between structural rules designed to promote more speech and censorship rules based on broad, shifting and culturally driven criteria such as 'patent offensiveness,'" the brief stated.

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