This post was authored by FMC Policy Consultant Adam Holofcener.

As the infamous Eminem once rapped, “The FCC won’t let me be.” Don’t worry, Em — the Federal Communications Commission isn’t singling you out. In fact, the FCC’s indecency policy applies to everyone who would be seen or heard on broadcast media.

The FCC’s policy is intended to keep content relatively “clean” between the hours of 6 am and 10 pm. A worthy goal, but how does it work in practice? Turns out not very well. As several courts have found, the FCC’s current indecency policy is unreasonably vague and can lead to a chilling of creative expression. Now, it’s once again the Supreme Court’s turn to weigh in.  

Why should musicians care? First, there is a treasure trove of cultural content which should be accessible to Americans through traditional broadcast media. Examples abound: Martin Scorsese’s “The Blues: Godfathers and Sons,” Ken Burns’ World War II documentary “The War,” Peabody Award winning 9/11 retrospectives and much more. All of these contain speech which could trigger fines under the FCC’s current standards. Second, this policy applies to radio as well as TV. If companies like Fox, with huge budgets and their own regulatory compliance officers, can’t decipher what is indecent, what about a small broadcaster? Stations will likely err on the side of caution, thereby limiting what their listeners can hear. Artists may eventually self-censor, and the public could be deprived of challenging and important expression.

As we reported in the summer, the Supremes have agreed to a limited review of one aspect of FCC v. Fox: whether the Commission’s policy violates the First Amendment of the United States Consitution. On November 3, 2011, FMC and the Center for Creative Voices filed an amicus brief in the case, urging the judges to rule that the FCC’s policy interferes with broadcasters’ speech rights.

FCC v. Fox concerns the nationally televised 2002 and 2003 Billboard Music Awards in which Cher and Nicole Richie let fly some naughty words. At the time, after received a slew of complaints, the FCC determined that the utterances — whether intentional or not — were indecent. Fox appealed the decision, and the Supreme Court held that the FCC’s ruling should stand because it was not “arbitrary and capricious” (that basically means the FCC didn’t act crazy). When the Supreme Court sent the ruling back down to the Second Circuit Court of Appeals, that bench declared the indecency policy so vague as to unconstitutionally restrain speech. Now it’s back up to the toppermost court, which will decide this thing once and for all.

Our amicus brief — filed by our legal heroes at Media Access Project — argues that past cases do not allow for “the FCC’s new, hard line on indecent speech [or] … restrictions on fleeting and isolated images or words.” In other words, the Supreme Court has previously ruled that speech should not be curtailed over a couple of random f-bombs. Furthermore, we think that the FCC can rule narrowly enough as not to upset the entire broadcast regulatory applecart.

While we understand the purpose of indecency policy, we would prefer it not to be so vague as to chill creative expression. The Supreme Court has yet to schedule oral arguments for FCC v. Fox, but we will be sure to keep you updated as the case progresses.