Fox fights back
: I just got a copy of Fox Broadcasting's rebuttal to the FCC's record fine against Married by America. It is a great document.
I'll proudly note first that I am a footnote for my reporting (complete with permalink).
Mr. Jarvis concludes that the "latest big fine by the FCC against a TV network . . . was brought about by a mere three people who actually composed letters of complaint. Yes, just three people." Id. Mr. Jarvis further complains that "[i]t is Constitutionally abhorrent that only three people can cause the government to abuse the First Amendment and attempt to censor and chill speech." Id.
I am honored to officially stand between the FCC and the First Amendment, even if only in a minor supporting role.
Fox added an important observation -- as Mediaweek did yesterday -- about the tactics of the Bozell complaint factory: "Only one complainant professed even to have watched the program." Exactly. The FCC does nothing to confirm that these alleged complaints come from citizens or that they watched the show. Bozell apparently pays lackeys to ferret out "filth" and then uses his cult members and his FCC bitches to do is bidding. And media follow right along without asking the right questions.
Also, I never reported the audience size for this allegedly indecent show before. Fox says that 5.1 million households watched (which means more viewers than that). So it's 5.1 million vs. 3.
Whose community standards is the FCC enforcing? Not my community's.
And that raises another point that is the subject of my next FOIA request: The FCC, according to Fox, does nothing to discover and discern community standards. I'm going to ask to see any and all surveys, focus groups, and studies of the community and its standards used by the FCC in its enforcement of those standards.
Fox makes a number of good arguments in its 77-page filing against the FCC's continued censorship. Among them:
: The FCC is enforcing an indecency standard that the Supreme Court specifically rejected in the Communications Decency Act.
... the Supreme Court in Reno v. ACLU ruled that the indecency standard that Congress proposed for the Internet in the Communications Decency Act ("CDA") was unconstitutional. The CDA's definition of indecency was nearly identical to the broadcast standard – the only difference between the two definitions was the phrase "for the broadcast medium," which modifies contemporary community standards. The Court's conclusion that the Internet standard was unconstitutionally vague applies with equal force to the Commission's broadcast indecency standard...
The Reno Court found that the failure of the CDA to explain key terms in the definition of indecency would "provoke uncertainty among speakers" and prevent them from divining what speech violated the statute.The vagueness was especially troubling because the regulation of indecency is inherently a content-based regulation of speech. "The vagueness of such a regulation rasies special First Amendment concerns because of its obvious chilling effect on free speech."
Case in point: Saving Private Ryan, which Fox also cites.
: The FCC is attempting here to expand its own definition of indecency. The show depicted no nudity and no sexual activity and so the FCC went after the show's "sexual nature." That is new.
Without discussion or analysis, the Commission apparently has expanded its definition of indecency to provide that any scene of a "sexual nature" depicts "sexual activity." "Sexual nature" is found nowhere in the Commission's Indecency Policy Statement nor in its rules, nor are we aware of any previous case relying on this legal standard to find that broadcast material violates the Commission's threshold requirements for an indecency violation....
Television programs too numerous to name and fitting into widely divergent genres – from Friends to Law & Order: Special Victims Unit – involve some scenes that could be described as "sexual in nature" and occasionally rely on "sexually compromising situations" to develop the plot and intensify the drama or comedy for viewers. The Commission's new legal standard, "sexual nature," not only represents a sudden departure from precedent with no apparent legal basis whatsoever but also is so overbroad that it threatens to implicate the day-time and prime-time line-ups for nearly all broadcast television.
This follows the FCC's expansionist efforts in declaring that Bono's F word was profane -- the first time it had found anything profane.
And so it is not hard to see that the FCC could expand this "sexual nature" rule into other forms of speech. If Fox can be fined for suggesting sex and pixelating it, can a radio station be fined for bleeping the F word if we know what it is (as we always do) because that station is giving us speech of a profane nature?
: The supposedly indecent programming lasted for only 105 seconds (which may seem like an eternity vs. the 19/32nds of a second that Janet Jackson's breast felt fresh air but it's a blink in any case). The FCC is supposed to go after content that "deslls on or repeats at length" indecent material. I don't call 105 seconds dwelling.
: The content of the allegedly offending segment was not only relevant to the show, it bolstered the moral message of the show: "Indeed, the contestants who exhibited the most discomfort at their bachelor and bachelorette parties were the same contestants chosen by viewers in the final audience vote." So the moral side won. Give credit to the American people; they will chose the right way; they don't need government to choose it for them!
Fox continues: "The Commission ignores these facts, choosing instead to insert itself into the creative process...." Right. That is precisely the problem with government acting as censor. Government inevitably then acts as editor and producer. That is not and should never be government's role.
: The FCC's rules are unconstitutionally vague.
the Commission's definition of indecency is unconstitutionally vague, providing broadcasters with no reliable guidelines to discern which content is lawful in the eyes of the Commission. Moreover, the definition incorporates the concept of a national community standard for the broadcast medium, but the Commission has never defined that standard with any degree of precision, let alone the kind of precision necessary to survive a constitutional review.
: The governmnent "has never demonstrated that indecent material is harmful to children, and for that reason as well, teh Commission's rules cannot survive strict constitutional scrutiny."
: Broadcast should no longer be singled out for censorship.
Given the tremendous technological changes that have transformed the modern media environment, the Commission's indecency regulations no longer can withstand constitutional scrutiny. The massive expansion of cable and satellite video programming, together with the advent of the Internet, renders obsolete the second-class treatment that broadcasters are being subjected to under the First Amendment. ...
In any event, the "special justifications" for lesser First Amendment protection of broadcasting (including its "invasive nature," "the scarcity of available frequencies at its inception," and a "history of extensive government regulation") clearly no longer support disparate constitutional treatment.
: The Commission itself speaks with forked tongue on the question of broadcast's special role -- in the case of censorship, arguing still that TV is uniquely pervasive while in the case of its technology regulation, arguing that, in the FCC's own words:
"Today we can access news, information, and entertainment in many enhanced and non-traditional ways via: cable and satellite television, digital transmission, personal and portable recording and playback devices, handheld wireless devices, and perhaps the most extraordinary communications development, the Internet. In short, the number of outlets for national and local news, information, and entertainment is large and growing."
: There are now other means to regulate what comes into the home -- such as the V chip. The Supreme Court, in its close decision on Carlin's seven dirty words -- the decision that empowers to the FCC -- said that the agency should find the least restrictive way to deal with indecency. It is not.
In contrast to a total ban on protected speech, technology, particularly the V-Chip, povides the government with a far less restrictive means of protecting children from the purported harm of indecent material: Parents can simply disable television sets from receiving objectionable content....
While at the time of Pacifica it may not have been possible to keep the pig out of the parlor, today, the VChip and other blocking technologies enable individual citizens to make sure that the pig stays in the barnyard.
: The FCC is being inconsistent in fining the Fox affiliates while not finding CBS affiliates.
And on and on. It is a good thing that the First Amendment will again have its day in court against the jihad of the cult and the Commission.
