Court Asked to Void ''Vague'' FCC Indecency Rules

RADIO ONLINE | Friday, November 11, 2011 | 3:25pm CT

The Student Press Law Center, a nonprofit advocate for the First Amendment rights of student media, joined College Broadcasters Inc. in urging the U.S. Supreme Court Thursday to strike down the FCC's policy of fining broadcasters for "fleeting expletives." SPLC and CBI claims that the policy is forcing student broadcasters to censor themselves unnecessarily.

In a friend-of-the-court brief filed Thursday, the SPLC and CBI asked the Court to declare that the FCC's post-2001 crackdown on swear-words in over-the-air broadcasting violates the First Amendment. The brief argues that the FCC has failed to give broadcasters clear guidance on what uses of profanity or nudity will lead to fines, which can range up to $500,000. And when "indecent" content will be deemed justified by the artistic or news value of the broadcast.

"The Commission's current approach chills college broadcasters into self-censoring their speech so as to leave a broad buffer before reaching the indistinct boundary where indecency may (or may not) lie. This is the hallmark of an unconstitutionally vague regulatory regime," said the brief, filed in support of Fox Broadcasting in its long-running dispute with the FCC over "fleeting expletives" in live broadcasts.

"College broadcasting is supposed to be a laboratory for experimentation, and is supposed to be a forum for presenting live talk, news and sporting events. But the risk of a five-figure or six-figure fine that could put a station out of business really discourages students from airing the very type of broadcasts that their audiences most want and that offer the most diversity in programming," said attorney Frank D. LoMonte, executive director of the SPLC.

LoMonte said the SPLC felt it was essential for the student media to be represented in the case because the FCC has argued that broadcasters are well-funded, sophisticated entities with ample financial resources to purchase and operate "delay" technology to catch stray profanities, ignoring the reality at small campus stations.