ACLU Joins Media Giants and Performers in Asking FCC to Reconsider Indecency Ruling on Bono Remark

April 19, 2004 12:00 am

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NEW YORK – The American Civil Liberties Union today joined a coalition of major media companies, advocacy groups and performers in asking the Federal Communications Commission to reconsider its ruling that rock star Bono’s use of a sexual expletive during a live telecast of the 2003 Golden Globe Awards was “indecent and profane.”

“The FCC is now setting itself up as a national censorship board, seeking to impose its version of morality on the American public,” said Chris Hansen, an ACLU senior staff attorney and expert on free speech issues. “What’s worse, for the first time in television history, the FCC is declaring that tape delays of live broadcasts are necessary to protect us from so-called indecency and blasphemy.”

The FCC’s definitions of these terms, Hansen said, “are so hopelessly vague that no broadcaster can conscientiously apply the rules. As a result, broadcasters will self-censor, and we will lose both creative, challenging content and spontaneity.”

The ACLU joined the action as a petitioner together with a coalition that includes Fox Entertainment Group, Viacom (which owns CBS, MTV, BET and other media entities), the National Coalition Against Censorship, the Screen Actors Guild, the performers Penn & Teller, and comedian Margaret Cho. The petition was filed by attorneys with the law firm Davis Wright Tremaine, led by Robert Corn-Revere, a noted First Amendment litigator.

“The Commission’s decision that the isolated use of an unplanned and unscripted expletive is both ‘indecent’ and ‘profane’ represents an unconstitutional expansion of the government’s intrusion into broadcast content,” the groups said in the petition. That decision, the groups said, “is already exerting a chilling effect on constitutionally protected speech.”

The current controversy arose after the FCC’s Enforcement Bureau declined to impose a penalty on NBC for a live telecast of the Golden Globes in which U-2’s lead singer Bono said “this is really, really fucking brilliant” when receiving an award. Last month, a full Commission reversed that decision.

In its ruling, the Commission also put broadcasters on notice that it will punish broadcasters for “isolated” or “fleeting” expletives even if they are accidental or unintentional. The FCC said that the definition of “profanity” includes “blasphemous” speech as well as words considered offensive because they are “vulgar” or “coarse.”

The move to include “blasphemy” in the definition of profanity is particularly disturbing, the ACLU’s Hansen said, because it injects the government into religious disputes in a way that violates the Constitution.

The FCC ruling goes far beyond anything the Supreme Court approved in the landmark “seven dirty words” case FCC v. Pacifica, Hansen noted. In that 1978 ruling, the Justices found that only “repetitive and frequent” use of the words in a time or place when a minor could hear can be punished.

Furthermore, Hansen said, the ACLU’s 1997 Supreme Court victory in Reno v. ACLU striking down indecency laws on the Internet cast serious doubt on the FCC’s ability to ever punish speech using the vague label of “indecency.”

In addition to joining today’s petition, the ACLU is also opposing the Broadcast Decency Enforcement Act of 2004 (S. 2056, which would allow the government to levy large fines on broadcasts that the Federal Communications Commission considers “indecent.” This vague definition would lead to broadcasters censoring their content and forbidding their staff from playing controversial material. The proposed legislation would even allow the FCC to impose large fines on musicians, comedians and other artists it considers “indecent.”

For more information, go to /node/3938

The petition for rehearing is online at /node/34984

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