[This post was co-authored by FMC policy counsel Christopher Naoum]
Another win for the good guys! Last week, the United States Court of Appeals of the Second Circuit shot down the constitutionality of the FCC’s indecency policy in ABC Inc, v FCC — a clear victory for free speech and creativity. Media Access Project filed an amicus brief in this case on behalf of FMC and Center for Creative Voices in Media that supported the basic position of ABC and their affiliates. You can find the brief here (PDF).
We music people care about this issue because the FCC’s indecency policy is broad enough to impact other areas, like broadcast radio. This can have a chilling effect that we think is very dangerous to free expression and artistic exploration across disciplines. And it’s not just the creators who lose — it’s also the public, who may be deprived of challenging and worthwhile material.
The case at hand involves an episode of “NYPD Blue” that aired back in 2003. In the show’s opening scene, viewers got a glimpse of — gasp! — a bare butt for approximately eight seconds. Now, you might not like that, but is it enough to trigger a response from the FCC, based on their current indecency policy?
Under federal statue, the FCC has the authority to regulate the utterance of obscene, indecent and profane language over radio communication. The Commission does this primarily by restricting the airing of any indecent content between the hours of 6 a.m. and 10 p.m. — you know, when kids are most likely to be watching.
Although the NYPD episode aired after 10 p.m. on the East Coast, the Mountain and Central time audiences fell within a time zone where the FCC has authority to regulate and impose fines. According to the FCC, indecent material is that which “describes or depicts sexual or excretory organs or activities” and is “patently offensive as measured by contemporary community standards for broadcast medium.” However, as the FCC itself had previously stated, “nudity itself is not per se indecent.”
The court decided the outcome of this case after it had already ruled on Fox Television Stations, Inc v FCC back in 2010. In the Fox case — which hinged on the fleeting, unscripted utterance of “fuck” and “shit” — the court determined that the current FCC indecency policy violated the First Amendment because it was “impermissibly vague.” (We filed in that one, too.)
This time around, the court said that, “although this case involves scripted nudity, the case turns on the application of the same context based indecency test that (the Fox court) found ‘impermissibly vague.’” Which means it’s basically the same vague policy, dude.
The danger in regulating indecency based on vague policy is that broadcasters and creators will not know when content might be considered indecent and when it might not. This potential chilling effect on expression is exactly what happened to Ken Burns’ WWII documentary “The War,” where two different versions had to be released to satisfy PBS affiliates’ fear of sanctions. Similar concerns surrounded the Martin Scorsese documentary about the blues.
This victory underscores the need for the FCC to tread lightly in matters of regulating speech on the public airwaves. Without a coherent policy, music and other forms of expression may not reach audiences. That’s an undue burden on creativity, and a net loss to culture. Which is why FMC continues to fight for musicians’ speech where we must.