NAB Files Amicus Brief In Supreme Court Indecency Case

Siding With The Networks

The NAB has filed an amicus brief in the indecency case before the Supreme Court.  The brief, in the "fleeting expletives" case against FOX and the "NYPD BLUE" case against ABC, supports the Second Circuit Court of Appeals' ruling that the Commission's indecency policy is vague and unenforceable, chills protected speech, and exceeds the Commission's authority.

"In the guise of performing 'contextual' analyses," the NAB argues, "the Commission is actually making its own subjective judgments about what content it deems valuable, and what content valueless. Broadcasters are left to guess at how the policy will apply to them -- and there is not just a risk but actual evidence that the policy is being applied in a discriminatory manner."

The Commission is actually making its own subjective judgments about what content it deems valuable, and what content valueless. ... There is not just a risk but actual evidence that the policy is being applied in a discriminatory manner

The brief notes that the Commission's "refusal to act on petitions for reconsideration or oppositions to notices of apparent liability" in many cases "forecloses these Commission decisions from judicial review. Indeed, the Commission's procedural maneuvering appears designed to ensure that its most vulnerable orders never leave the Commission and thus can never be reviewed by a court. Under this regime, broadcasters cannot be sure exactly what the law is and consequently steer far clear of anything that is even arguably indecent." 

The resulting chilling effect, the NAB argues, "is palpable and broadly felt, particularly by local and independent broadcasters. These are the entities least able to afford the types of delay and blocking technology on which the government places so much emphasis."

The NAB also argues that the PACIFICA "seven words you can't say on television" ruling from 1978 "does not give the Commission authority to implement its vague and chilling indecency policy ... This Court has never cited scarcity of broadcast spectrum as a basis for regulating broadcast content. If anything, the government's position as licensor selectively allocating broadcast spectrum resources counsels against permitting content-based restrictions. As to the pervasiveness of broadcast media, even the government acknowledges that broadcasters face stiff competition from cable and other sources of news and entertainment that are not subject to the Commission's censorship. Although the government tries to suggest that the existence of more outlets for speech somehow translates into a greater justification for government restrictions on broadcasters, the opposite is true. Finally, as to the accessibility of the broadcast medium to children, parents already have and use tools to control their children's consumption of broadcast programming, and there is no reason to believe that they are in need of the government's assistance in this regard. Moreover, this Court has found that other media that are at least as accessible to children -- such as video games -- may not be censored."

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