A Briefing On Public Policy Issues Affecting Civil Liberties Online from The Center For Democracy and Technology
(1) Indecency Ruling a Significant Victory for Free Expression
(2) Ruling Sets Stage for Challenges to FCC Indecency Authority
(3) FCC Authority Rooted in Pre-Digital Media Landscape
Earlier this month, a federal appeals court in New York handed an important victory to free expression advocates when it blocked the Federal Communications Commission (FCC) from expanding its authority to regulate speech over broadcast media. In its decision, the court endorsed a position forwarded by the Center for Democracy and Technology (CDT) and other public interest advocates that technological evolution may be rendering the FCC's traditional indecency authority obsolete. CDT and Adam Thierer of the Progress & Freedom Foundation raised those concerns in a friend-of-the-court brief filed in the case, which pits the FCC against major television broadcasters.
In recent years, the FCC has mounted a crackdown on televised "indecency," broadly interpreting its limited authority to regulate such speech to include an ever-widening swath of content. In one of its most troubling moves, it reversed over thirty years of well-reasoned policy that held that so-called "fleeting" expletives -- single uses of common expletives (such as in a live broadcast) -- were not cause for indecency determinations or fines.
The U.S. Court of Appeals for the Second Circuit put a stop to the new policy, finding it arbitrary and capricious and unsupported by reasoned explanation. The court also cast doubt on the constitutional underpinnings of the FCC's indecency authority, saying that it was extremely skeptical that the FCC would ever be able to "provide a reasoned explanation for its 'fleeting expletives' regime that would pass constitutional muster."
As TV and TV-like programming migrates to the Internet and network based devices, the high free expression protections afforded the Internet by the Supreme Court appears to be on a collision course with the outdated broadcast indecency rules. But the changes in the Court over the decade since the ACLU v Reno decision (which held the Internet to be fully protected under our First Amendment) and dramatic changes in Internet technology leave the outcome less than assured.
The question is already being addressed in Europe in precisely the way that free expression advocates in the U.S. have most feared. In a recent move, the EU adopted what is commonly known as the "TV without frontiers" directive which seeks to import a wide variety of TV-based content restrictions now aimed at child protection on television into the Internet in order to create a "level playing field" between media.
Free expression advocates in the United States have argued precisely to the contrary, noting that the robust user empowerment tools that rendered old-media style censorship completely unnecessary on the Internet are increasingly available in all manifestations of the converged digital media. The days of passive "viewers" are fast coming to an end, replaced by an age of active "users" who can control their families' video and other online experiences. In light of these profound changes, the courts are right to question whether the FCC's censorship authority makes any sense at all.
CDT/Adam Thierer Second Circuit Brief
Television Without Frontiers Info
The legal decision in the Second Circuit ruling was an important one, but what made the ruling so remarkable was an unusually detailed and robust section of "dicta" -- or discussion that goes beyond the specific holding of the case. After the court set out its decision, it spent an additional nine pages setting out the facts and analysis that support its conclusion that technological advancements and convergence have eroded the basis of the commission's authority to regulate broadcast content altogether.
Most importantly, the appeals court said: "technological advances may obviate the constitutional legitimacy of the FCC’s robust oversight." The court further explained that the "proliferation of satellite and cable television channels -- not to mention internet-based video outlets -- has begun to erode the 'uniqueness' of broadcast media, while at the same time, blocking technologies such as the V-chip have empowered viewers to make their own choices about what they do, and do not, want to see on television."
This is precisely the point CDT made in its amicus brief, arguing that the convergence of entertainment technologies -- broadcast, cable, satellite, Internet -- is making distinctions between them meaningless, especially those distinctions that have given rise to vastly different policy and legal frameworks. The Second Circuit quoted U.S. v. Playboy (2000) in which the Supreme Court wrote, "Technology expands the capacity to choose; and it denies the potential of this revolution if we assume the Government is best positioned to make these choices for us."
In 1996, CDT successfully argued to the Supreme Court that the Internet did not need a censorship regime, due in large part to the ability of Internet users to control their online experience. The "user empowerment" tools to support user choice have become far more robust since that decision and with convergence, such tools are available for a wide range of digital media. With its thoughtful and forward-looking opinion, the Second Circuit has paved the way for the next generation of challenges against the FCC's increasingly unfounded authority to regulate broadcast content.
The Supreme Court narrowly upheld the FCC's authority to regulate indecent speech on television and radio in the 1978 case FCC v. Pacific Foundation. The FCC had taken action against a radio station that aired comedian George Carlin’s "Filthy Words" monologue in which he repeated seven expletives over and over making fun of society's attitude toward these words. The Commission invoked a federal statute (18 U.S.C. 1464) that makes it a crime to utter "any obscene, indecent, or profane language by means of radio communication."
The Supreme Court held that while "indecent" but not "obscene" speech -- i.e., speech that may be offensive but does not have prurient appeal -- is protected by the First Amendment, the FCC may nevertheless regulate it when delivered via broadcast without offending the Constitution. The Court noted that the broadcast medium is uniquely "pervasive" or "invasive" and is "uniquely accessible to children, even those too young to read." Justice Souter later explained in Denver Area Educational Telecommunications Consortium, Inc., v. FCC (1996) that the FCC’s regulatory authority depends on broadcast being "difficult or impossible to control without immediate supervision."
In contrast to Pacifica, the Supreme Court held in 1996 that the justifications for regulating broadcast do not apply to the Internet. In Reno v. ACLU, the Court struck down the Communications Decency Act, which, among other things, prohibited the transmission of "indecent" messages to minors. The Court held that Congress did not have authority to criminalize indecent speech because "the Internet is not as 'invasive' as radio or television."
The FCC makes indecency determinations based on what is "patently offensive" as measured by "contemporary community standards." This "community standards" approach is based on that taken in the seminal case Miller v. California (1973), that addressed the First Amendment’s application to obscenity. In that case, the Supreme Court contemplated the use of some objective, representative evidence of "community standards," such as a survey of what material is actually available in a given community. However, when technology allows families to set their own "household standards" as it does on the Internet -- the legitimacy of the "community standards" approach is placed in doubt.
It is not yet clear what the FCC will do in response to the court’s decision. There are hints in the trade press that the FCC may try to appeal the case to the Supreme Court, but given the narrowness of the Court’s actual holding (focused on the inadequate explanation by the FCC), it is unlikely the High Court would take the case.