This case is based on televised expletives aired on the 2002 and 2003 Billboard Music Awards broadcasts. Originally, the FCC determined that the utterances, whether intentional or not, were indecent after a slew of complaints were sent to the commission. During such an evaluation, the FCC queries whether the utterances “depict[ed] sexual or excretory organs or activities.” Fox appealed the ruling, and the Supreme Court held that the FCC’s ruling should stand because it was not “arbitrary and capricious” (in non-legalese that just means the FCC didn’t act crazy). When the Supreme Court sent the ruling back down to the Second Circuit Court of Appeals, those New York-based justices declared the indecency policy so vague that it unconstitutionally restrained speech. On its second trip up to the highest of high courts, we should get a final answer as to whether the FCC’s indecency policy will stand.

Like FMC’s previous amicus briefs from July 2008 and September 2009, this filing demonstrates the “vague and arbitrary” nature of the FCC’s current indecency policy. The result of this policy has been a chilling effect on creativity on the public airwaves, due to broadcasters’ fears of getting fined for airing “offensive” content. For example, Ken Burns’ WWII documentary “The War” was aired in two different versions to satisfy PBS affiliates worried about possible FCC sanctions. Creators are left guessing what constitutes indecent material, which leads to self-censoring and ultimately deprives the public (and artists) of access to a variety of worthwhile content.