Center for Creative Voices in Media Blog

Creative Voices Discusses Supreme Court Indecency Decision

Jonathan Rintels, Executive Director of Creative Voices, discusses the Supreme Court's decision to uphold the Federal Communications Commission's fining of Fox Television for airing Cher and Nicole Richie's "fleeting expletives" at the 2004 American Music Awards on Charlottesville Now, WINA-AM, on May 6, 2009, here.

Supreme Court Hears Fox Profanity Case

Alas, the Supreme Court skedded our indecency case on, wouldn't you know it, Election Day. Choosing between Voter Protection in Virginia and the Supremes, we chose Voter Protection and thus can't give our own eyewitness report on the oral argument. But John Eggerton of Broadcasting & Cable writes that, Chief Justice John Roberts and Justice Antonin Scalia raised some tough questions about whether the FCC had really changed its policy, and whether, in fact, it had sufficiently justified that policy. When Fox argued that society had become more tolerant of language in the 30 years since the Pacifica decision on broadcast profanities, Scalia asked whether the network might have had something to do with that. "Justice Ginsburg appeared to be squarely in our camp," said the representative. "Scalia, probably on the other side." Ginsburg said there was no "ryhme or reason" behind the FCC finding swearing in a documentary about the blues indecent, but not finding it indecent in WWII film Saving Private Ryan. 

We hear the Supremes were more comfortable avoiding the large Constitutional First Amendment questions that the networks raised about ANY government regulation of broadcast content and were looking to the more narrow question of whether the FCC had been "arbitrary and capricious," as the Second Circuit had found, in its suddenly sweeping expansion of indecency regulation that had been narrow and restrained for decades. Our expert SCOTUS handicapper predicts it'll be a 5-4 decision, one way or the other. Supreme Court Hears Fox Profanity Case - 11/4/2008 12:11:00 PM - Broadcasting & Cable.

Leahy Lays Into FCC Over Indecency Enforcement

Kudos to Sen. Patrick Leahy (D-VT) for remarks last night at The Media Institute: "The media should be...bringing vibrant and interesting voices and views into our homes,' not worrying that "an inadvertent slip is going to land them in trouble with regulators." Leahy said that while he does not want 'TV screens and radio shows filled with offensive and innapropriate words and images," he also said he had discovered that "there is an on/off switch," and suggested that was an important content contol technology. He also put in a plug for the V-chip/ratings system. The senator said he believed "Strongly" that it was the role of parents, not government regulators, "to determine what is appropriate for children to see and hear." "Good lord, where are we in this country," Leahy said after recounting the story of NBC affiliates afraid to show an episode of ER about breast cancer because they feared a brief depiction of a woman's breast would get them in trouble with the FCC. Leahy Lays Into FCC Over Indecency Enforcement - Broadcasting & Cable.

PTC Uses Kids as Human Shields

Josef Adalian in Television Week does a wonderful job of calling out the Parents Television Council. Couldn't be timelier, with the Supreme Court about to hear the crucial Fox v. FCC case, a case ginned up by the PTC banging on its email lists to flood the FCC with comments, most from people who never saw the show they were complaining about.

Unfortunately, the PTC’s actions and words too often have indicated that its real mission includes pushing for government-sanctioned censorship of the media and the elimination of any and all programming that conflicts with its far-right social and political philosophies. ... The PTC doesn’t want to make TV safe for kids. It wants to make it safe only for those shows that fit into its narrowly constructed worldview of what constitutes acceptable TV. And when it identifies programming that doesn’t mesh with its agenda, the PTC goes into overdrive whipping up its base to take action. “All they’re about is fund raising and court cases,” said one network executive who, like everyone interviewed for this column, spoke only on the condition of anonymity. “They would rather curse the darkness than light a candle.” Adalian Column: PTC Uses Kids as Human Shields - TVWeek - News.

Former FCC Chair Powell Regrets Pro-Indecency Vote

Now former FCC Michael Powell tells us he regrets having approved the decision to declare Bono's comments indecent. "It was a terrible mistake and I voted for it," Powell said at a forum on the Commission held in mid-September. Supreme Court to hear FCC f-bomb appeal on Election Day .  Recall when that decision, and the Janet Jackson furor, broke out -- in 2004, as President Bush was "basing" his reelection campaign on his appeal to the conservative "base."  Powell, as FCC Commish, reversed his former vocal opposition to expansive FCC "indecency" enforcement, and instead launched the Commission on a virtual crusade against it.  As we pointed out at the time, Powell was simply using the FCC to inflame (energize?) the base and turn the 2004 election in a "culture war" referendum.  Now, apparently, his principles and conscience have returned.  Unfortunately, creative media artists and the public have been saddled with his legacy: arbitrary and capricious FCC decisions that make a mockery of the First Amendment.  That's what the Second and Third Courts of Appeal have found, and why we're a party to upholding the Second Circuit in Fox v. FCC, to be heard by the Supreme Court on November 4.

UPDATED - "Dismayed" Bipartisan FCC Chairs, Commissioners, and Officials Denounce FCC Indecency Decisions as "Victorian crusade"

Former FCC Chairs Newton Minow and Mark Fowler, joined by other former FCC Commissioners and officials, have added their respected -- and "dismayed" -- voice to that of Creative Voices in urging the Supreme Court to uphold the Second Circuit's decision in Fox v. FCC. In their brief, they write:

... we have been dismayed by a series of recent [FCC] decisions that have transformed a hitherto moderate policy of policing only the most extreme cases of indecent broadcast programming into a campaign of regulatory surveillance that will chill the production of all but the blandest of broadcast programming.

The FCC’s policy towards broadcast indecency has evolved from a restrained effort to regulate clear, flagrant instances of indecent language by a handful of broadcast licensees and performers into an ever-expanding campaign against ordinary radio and television programming. In pursuit of a policy of protecting children against exposure to extremely offensive language, the Commission has embarked on an enforcement program that has all the earmarks of a Victorian crusade. To effectuate its new clean-up-the-airwaves policy, the Commission has radically expanded the definition of indecency beyond its original conception; magnified the penalties for even minor, ephemeral images or objectionable language; and targeted respected television programs, movies, and even noncommercial documentaries.

These officials also want the Supremes to strip away entirely the FCC's indecency enforcement authority. This is extremely powerful. The brief is at QuelloFCCFox.pdf. An excellent Broadcasting & Cable article is here.

UPDATED.  Bill Triplett in Variety reports reaction to the brief from Ex-FCC Chairs and Commissioners:

"They do listen to the voice of experience," says Patricia Millett, an attorney in the Supreme Court practice of the bluechip firm Akin Gump. "And the fact that it's bipartisan will carry more weight because it looks less political. ... The court does pay attention when a brief is written in terms of day-to-day work and how a policy is workable or not."

"They make a very compelling argument," says a veteran Supreme Court observer of the ex-chiefs' point. "They understand and are sympathetic to the FCC's task on indecency but experience shows that the commission can't handle the political pressure."

Artists to SCOTUS: FCC fleeting expletives policy is f*ed up

Matthew Lasar wrote on ars technica an excellent article on Creative Voices' brief to the United States Supreme Court to "send the Federal Communications Commission's tortured "fleeting expletive" rules to the shredder." He nicely puts our brief in the context of the history of indecency enforcement and litigation -- very interesting piece. Artists to SCOTUS: FCC fleeting expletives policy is f*ed up.

Creative Voices Tells Supreme Court to Uphold Reversal of Flawed FCC Indecency Decisions

Creative Voices today filed a brief urging the U.S. Supreme Court to uphold last year's well-reasoned Second Circuit reversal of the FCC's flawed indecency decisions in Fox v. FCC -- the Cher, Nicole Ritchie, and Bono "fleeting expletives" case. CV is an intervening party in the case, arguing that the FCC's arbitrary enforcement of its indecency rules has created a "chilling effect" that harms creative artists and the general public. Big Chill: How the FCC’s Indecency Decisions Stifle Free Expression, Threaten Quality Television, and Harm America’s Children, our report documenting numerous incidents of censorship and the insidious harm of the "chilling effect," was attached to the Supreme Court brief as an appendix. The Big Chill report is available here. Center for Creative Voices in Media: News.

Creative Voices Podcast on Janet Jackson, Net Neutrality

CV Executive Director Jonathan Rintels was interviewed by WINA-AM 1070 host Coy Barefoot for half an hour about the Third Circuit's overturning of the FCC's decision to fine CBS $550,000 for Janet Jackson's "wardrobe malfunction" during the 2004 Super Bowl halftime show. They also discussed the FCC's decision to sanction Comcast for blocking and discriminating against Internet traffic. Link here.

Top Aide to ex-FCC Chair Powell Applauds Court's Reversal of Powell's Janet Jackson Fine

Of all the encomiums for the 3rd Circuit's overturning of the FCC's CBS/Janet Jackson Super Bowl "wardrobe malfunction" fine, perhaps the most unexpected is this:

“Perhaps it is time to read the handwriting on the wall: the guardians of our First Amendment freedoms in the courts are not going to allow the FCC to play the role of media supernanny,” said Ken Ferree, president of the libertarian Progress & Freedom Foundation. “A free and vibrant, even if occasionally coarse, marketplace of speech is the cornerstone of a free society. We allow government to meddle in that marketplace at our peril.”

As many will recall, then FCC Chair Michael Powell pushed hard for the Janet Jackson fine, making the rounds of all the talk shows to express how outraged he was, attempting to turn the incident, it appeared to many, into a defining moment in the "Culture Wars" and a campaign issue for President George W. Bush's reelection. Ken Ferree, of course, was FCC Chairman Michael Powell's top aide and close friend at the FCC, running the Media Bureau. Welcome to the fight, Ken! Court tosses FCC Super Bowl fine - Variety.com.