The Honorable Fred Upton, Chairman
The Honorable Edward J. Markey, Ranking Member
House Committee on Energy and Commerce
Subcommittee on Telecommunications and the Internet
2125 Rayburn House Office Building
Washington, DC 20515

Dear Mr. Chairman, Congressman Markey:

On behalf of our organizations’ members and supporters, we write to express our concerns about H.R. 3717, the Broadcast Decency Enforcement Act of 2004. In particular, we urge the Committee to take this opportunity to review the context and constitutionality of the FCC’s regulation of indecency while resisting attempts to impose additional restrictions on speech beyond the level of assessed fines for broadcast indecency.

As organizations dedicated to defending the First Amendment, we ask the Committee to remain mindful of the balance between the fundamental right of freedom of expression and the "public interest" element of broadcast licenses during its consideration of the issue of broadcast indecency. The U.S. Supreme Court has repeatedly held that so-called indecent speech, which can include valuable political and artistic expression, is protected by the First Amendment, unlike obscenity. While the Court has also said that Congress may go further in regulating indecency over the public airwaves than it can in other media, the rationales that underlie the 1978 Pacifica Radio decision have since been overtaken by technological and societal change.

Not only do the ubiquity and prominence of cable television, satellite radio, and the internet challenge the Supreme Court’s assumptions of nearly twenty five years ago, but the Court has also consistently found during the intervening period that the First Amendment’s protection of indecency covers these new forms of communication. Thus, solutions to broadcast indecency adopted by the Congress and the FCC must reflect the dramatically different context that exists today for the broadcast industry and the listening and viewing public.

H.R. 3717 would increase ten-fold the fines that the FCC may levy for the broadcast of indecent, profane, or obscene content over the public airwaves. The stated goal of the bill is to deter such conduct. We cannot support this legislation because we fear that greater liability, combined with the vagueness and other defects of the FCC’s current indecency "policy" (and ad hoc approach to enforcement), will serve to chill protected speech by broadcasters and performers. This effect will be greatest among smaller and independent broadcasters. Given a choice between censoring themselves and financial ruin, many may be forced to choose censorship. Lost will be programming that may be provocative and challenging but which falls short of indecency.

Moreover, we would vigorously oppose this legislation if it were expanded to curb freedom of expression beyond the existing narrow focus on broadcasts over the public airwaves. Content received through cable, satellite, and the internet have never been constitutionally subject to the restrictions placed on the broadcast media. Indeed, efforts to do so have been consistently struck down by the courts as violating the First Amendment. Subscription-based services fundamentally do not share the "public good" character or "invasive" nature that have in the past been used to justify some restrictions on the public airwaves. While far more content is now delivered to American households through these media than through traditional broadcasts, we believe that far from inviting restrictive regulation of expression through these new technologies, this reality calls into question the efficacy and the constitutionality of broadcast restrictions.

During hearings in the House and Senate on this topic, several members and witnesses raised the idea of resurrecting a "voluntary" code of conduct for broadcasters. Aside form the historical antitrust problems with similar mechanisms (the National Association of Broadcaster Radio and Television Code was struck down on this ground), such codes have also come into constitutional question by the courts when they appeared to be proxies for Congressional or FCC action. For example, a federal district court in Writers Guild of America v. The Federal Communications Commission (1979) found that the "Family Viewing Hour" policy adopted by the major networks in the 1970s unconstitutionally infringed on the First Amendment because the code was adopted after extensive "jawboning" by the FCC. In a detailed review of the history of the policy, the court found that the networks were essentially coerced into acting as de facto agents of the government and that the result was censorship and attempted censorship of such acclaimed shows as "M.A.S.H." and "All in the Family."

While the district court decision was later overturned on procedural grounds, the substance of its First Amendment analysis has not been formally contravened by subsequent decisions. Given this history, we believe Congress and the FCC would not be wise to rush into embracing so-called "voluntary" censorship in the broadcast industry.

We do note that there are positive legislative steps that the Committee could take in improving the FCC’s regulation of the public airwaves. As noted above, the FCC’s current indecency standard, affirmed by the FCC in 2001, is vague, difficult to apply in a consistent way, and suffers from additional constitutional defects. Performers and broadcasters have little guidance in evaluating their liability for airing specific works. In fact, the FCC has specifically declined to issue declaratory opinions on indecency. For example, when a radio network recently sought an opinion from the FCC regarding whether a broadcast reading of James Joyce’s Ulysses would be indecent, the Commission declined to issue guidance. Broadcasters and all others involved in this issue would welcome greater clarity from the FCC.

There are also other constitutional problems with the current FCC standard and approaches. For example, the present indecency standard does not require review of the work as a whole. It does not evaluate the effect of the material on an average person, and it allows restrictions on material that has serious literary, political, or scientific value. Given that the U.S. Supreme Court has firmly stated that the government must consider such factors before it can restrict obscenity, which does not enjoy the full protection of the First Amendment, we think it should also do so for indecency – which is constitutionally protected. Therefore, we would support efforts by Congress to require or encourage the FCC to undergo a rulemaking proceeding to clarify its indecency standards and refashion them in light of current First Amendment protections of expression.

In addition, the Congress could demand that the FCC improve its procedures for regulation of indecency. No one is served (broadcasters, performers, nor the listening public) when a complaint of indecency, the investigation, the decision by the Enforcement Bureau, and final decision by the full FCC take months or even years to run its course.

If the initial finding by the Enforcement Bureau is that the content is indecent, performers may find themselves literally barred from the public airwaves for months or years while that decision is being reviewed. A recent example concerns acclaimed poet and performer Sarah Jones. A piece entitled "Your Revolution," which Jones wrote as a "response" to the objectification of women in popular music regularly broadcast on the radio, was effectively banned from radio for two years while an initial finding of indecency worked its way through the FCC’s Enforcement Bureau – and was ultimately overturned. Congress could require the FCC to act more quickly on indecency cases and could provide adversely impacted performers and broadcasters earlier and more direct access to prompt administrative and judicial review of FCC actions that impact the content of broadcasts.

In conclusion, we recognize the difficulty and complexity that the Congress, the FCC and the industry face in addressing the issue of indecency over the pubic airwaves. As a result, we encourage you to act extremely carefully in this area. We appreciate the Committee being duly mindful of the implications of its potential actions for free expression, and we thank you for your attention to our comments.

Sincerely,

People For the American Way
American Booksellers Foundation for Free Expression
Center for Democracy and Technology
National Coalition Against Censorship
Peacefire

Cc: Members of the House Committee on Energy and Commerce.