Yesterday, the Center for Democracy & Technology and the Progress & Freedom Foundation filed joint comments in both the Second Circuit Court of Appeals and Third Circuit Court of Appeals calling upon the courts to halt the Federal Communications Commission's (FCC) recent over-zealous indecency enforcement activities. The cases are Fox Television Stations v. FCC (the Second Circuit case) and CBS Corp. v. FCC (the Third Circuit case). (The filings we submitted to the courts were virtually identical so I'm just posting the link for the Second Circuit brief which you can find here).
In our joint amicus briefs we argued that the status quo cannot stand for three primary reasons:
(1) The FCC has explained and justified its radical expansion of its indecency enforcement based on an asserted increase in the number of complaints it received about broadcast programming. That increase in complaint count, however, is primarily a result of a concerted manipulation of complaint statistics -- in violation of the Administrative Procedure Act (APA) -- and does not in any event substitute for the required analysis of the "community standards." The FCC's treatment of indecency complaints has allowed a "heckler's veto" in violation of the First Amendment, and the inconsistent and arbitrary analysis of indecency violates both the First Amendment and the APA. (Note: In this earlier study, I documented exactly how the Parents Television Council has orchestrated a sophisticated "get-out-the-complaints" campaign and also showed how the FCC had altered the complaint tallying process to benefit the PTC's efforts to artificially "stuff the (complaint) ballot box.")
(2) With a wide diversity of parental control tools now at their disposal, families have the ability to construct and enforce their own "household standard" for acceptable media content in their homes. Consequently, government does not have a compelling interest in imposing an amorphous "community standard" on Americans since there are less restrictive ways for families decide for themselves what should and should not be seen or heard in their homes. (This previous FCC filing of mine documents the many ways that parents can control video programming without resorting to government regulation).
(3) The FCC's increasingly aggressive attempts to control speech on the radio and television are on a collision course with a wave of technological change that will soon render the Commission's involvement in these matters obsolete. As the distinctions between broadcast and electronic media fade into history, we must ensure that the light-touch approach to Internet communications, and not the outdated rules for broadcast, becomes the standard for regulation in the converged media world.
We conclude, therefore, that the courts should overturn the FCC's recent decisions on appeal since the entire constitutional foundation for any enhanced governmental authority over content is diminishing. The old Pacifica "pervasiveness" rationale for regulation is increasingly irrelevant in era of expanding media platforms and technological convergence. And the rise of new user empowerment technologies, available for traditional broadcast as well as other video and audio media, allows for a shift away from government regulation to a more user-centric model that respects individual choice and encourages personal responsibility -- and, critically, still protects children.
I hope you take the time to read our briefs. These cases are of profound importance to the future of free speech in this country and will determine whether or not we will have a consistent First Amendment standard for all speakers and media platforms in the future.