A philosophically diverse coalition of technology policy organizations filed FCC comments (PDF) today urging the agency to stop censoring broadcast content for “indecency.” The coalition — TechFreedom, Electronic Frontier Foundation, Center for Democracy & Technology, and Public Knowledge — called the FCC’s broadcast indecency policies “a relic of a bygone era” that are unconstitutional and unnecessary in the modern world. Specifically, the comments argue that the world has changed so fundamentally since 1978, when the Supreme Court upheld indecency censorship in FCC v Pacifica , that the courts will eventually strike down whatever revised regulations the FCC might issue.
The following is an excerpt from the coalition’s letter:
Our organizations often differ significantly on many important questions facing the FCC. But we joined together in late 2011 in an amicus brief urging the Supreme Court to strike down once and for all the FCC’s indecency regulations as a relic of a bygone era when Americans had few choices for video programming, and little control over the content they allowed into their homes. Those days have passed. Broadcasting is no longer the cultural force it once was—or an “intruder in the home.” While the government’s efforts to censor the content of broadcast speakers have always been constitutionally suspect, they were understandable given the technology and marketplace of the day. But now, restricting the First Amendment rights of broadcast speakers is neither sound policy nor constitutionally defensible.
Indeed, when the courts finally confront the key First Amendment questions at issue here, they will likely find that there is no longer any constitutional basis for any form of indecency censorship at all; the factual predicate on which the Supreme Court’s 1978 Pacifica decision, and thus indecency regulation, rests, has long since disappeared.
In short, we believe that it is simply a matter of time before the Supreme Court strikes down indecency regulation once and for all. In the meantime, we urge the Commission to do as little harm as possible to First Amendment values by quickly issuing a new enforcement policy that provides clarity and predictability to broadcasters and that also allows for clean adjudication of the applicability of Pacifica in the digital era. While this weighty question is being resolved, broadcast speakers, like all speakers, should not have to defend themselves against vague and subjective accusations.
Berin is available for comment at bszoka@techfreedom.org . Szoka summarized the coalition’s amicus brief in the Huffington Post .