Creative Arts, Media and Free Speech Groups Join ACLU In Urging Supreme Court To Reject FCC Censorship

August 7, 2008 12:00 am

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Brief Calls On Court To Uphold Lower Court Ruling In “Fleeting Expletives” Case

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NEW YORK – In a friend-of-the-court brief filed today on behalf of creative arts, media and free speech organizations, the American Civil Liberties Union criticized the Federal Communication Commission’s regulation of “indecent speech” as arbitrary, inconsistent and irreconcilable with core First Amendment values. The brief urges the Supreme Court to uphold a lower court ruling in Federal Communication Commission (FCC) v. Fox Television Stations, Inc. striking down the recent FCC decision to ban even “fleeting expletives” from the airwaves as an unjustified departure from the agency’s longstanding practices.

The following can be attributed to Steven R. Shapiro, Legal Director of the ACLU:

“Decades of experience have shown that the FCC’s effort to regulate ‘indecent’ speech on the airwaves is arbitrary, inconsistent, and unpredictable. No government agency should be given such power under the Constitution. The FCC’s sudden and unexplained decision to ban even ‘fleeting expletives’ highlights this inconsistency, chills protected speech and violates the First Amendment.”

Several organizations joined the ACLU’s brief and called on the Court to reject the FCC’s suppression of free speech.

The following can be attributed to Michael Apted, President of the Directors Guild of America:

“For the first time in 30 years, the Supreme Court will review its policy on censorship of indecency. We’ve joined this amicus brief to assert our strong objection to the FCC’s capricious and inconsistent application of its policies on indecency and profanity as an unconstitutional expansion of the FCC’s control over the creative process and an unwarranted governmental intrusion on free speech.”

The following can be attributed to Ginny Z. Berson, Vice President and Director of Federation Services for the National Federation of Community Broadcasters:

“Noncommercial community-based radio broadcasters do not have the resources to appeal the FCC’s vague – and obsolete – rulings on what constitutes indecency at any given moment. Consequently, these stations block meaningful content from the air in acts of self-censorship so that they can spend their money creating programs that enlighten and empower their communities.”

The following can be attributed to Joan Bertin, Executive Director of the National Coalition Against Censorship:

“The FCC’s history of erratic and irrational decision-making about what is ‘decent’ on radio and TV has chilled creative expression and infringed the rights of viewers. By trying to accommodate the most squeamish viewers, the FCC’s rulings in fact cheat the vast number of adults who want intelligent and mature programming.”

The following can be attributed to Bob Edwards, First National Vice President of the American Federation of Television and Radio Artists (AFTRA):

“In joining with the ACLU in this brief, AFTRA members are urging that the U.S. Supreme Court upholds last year’s lower court reversal of the FCC’s flawed indecency decisions in Fox v. FCC. The FCC’s overly broad and arbitrary enforcement of its contorted indecency policies has created a chilling effect that harms performers and broadcasters – and the general public.”

The following can be attributed to David Greene, Executive Director of the First Amendment Project:

“We hope the Court takes this opportunity to bring its broadcast decency jurisprudence in line with the modern realities about how Americans welcome media of all sorts into their homes. The FCC’s current policy of arbitrary enforcement and ad hoc rule changes is not only mystifying, but offensive to the First Amendment rights of both those who create and transmit broadcast content as well as those who receive it.”

The following can be attributed to Laura Possessky, President of the Washington Area Lawyers for the Arts:

“The low-income artists that we counsel face many challenges to create their work. But doubt over when language might be barred from the airwaves or find favor with government regulators inhibits their art at its inception, an unconstitutional chill to their free expression rights.”

The following can be attributed to Francine Prose, President of PEN American Center:

“Huge swaths of American literature are effectively banned from the airwaves under the FCC’s indecency regime, more than ever under its absurd ‘fleeting expletives’ rule. Radio stations were even afraid to broadcast Allen Ginsberg’s ‘Howl’ on the 50th anniversary of that internationally-recognized classic. We look forward to the Supreme Court’s decision in this important case.”

Additional organizations on the brief are the American Booksellers Foundation for Free Expression; Minnesota Public Radio/American Public Media; and the National Alliance for Media Arts & Culture.

Lawyers on the case are Marjorie Heins and Shapiro and Chris Hansen of the ACLU.

The ACLU brief is online at:

More information is available online at:

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