Creative Voices Statement on SCOTUS decision in Fox v FCC

In response to decision in Fox v. F.C.C. by the Supreme Court of the United States, the following statement was issued by Jonathan Rintels, Executive Director of the Center for Creative Voices in Media:

The Center for Creative Voices in Media welcomes today’s ruling by the Supreme Court of the United States in Fox v. F.C.C. overturning the Commission’s findings of “indecency” against Fox in the Billboard Music Award cases and ABC in the NYPD Blue case. Creative Voices was an intervening party in the case, arguing forcefully that the lack of adequate Commission notice on what constituted indecency had a “chilling effect” on protected First Amendment speech, negatively impacting creative media artists and their audiences, the American public.

We regret, however, that the Court declined to overturn the Commission’s indecency policy as an unconstitutional violation of the First Amendment, which it certainly is. As a result of the Court’s actions, creative media artists now likely face many more years of uncertainty as to what precisely is or is not “indecent” under FCC policy, and whether that policy is consistent with the First Amendment.

The F.C.C.’s excessively broad, incomprehensibly ambiguous, and utterly subjective indecency policy has put creative, challenging, and controversial broadcast television programming at risk. In many cases, the very kinds of television programs that parents want their children to watch – high quality documentaries, histories, and dramas – are affected. We documented this chilling effect in our report filed with the Court, Big Chill: How the FCC’s Indecency Decisions Stifle Free Expression, Threaten Quality Television, and Harm America’s Children, available on our website.

The Center for Creative Voices in Media is a nonpartisan nonprofit group dedicated to preserving free speech, free expression, and independent and diverse creative voices in our nation’s media. Members of the Board of Advisors of Creative Voices include Warren Beatty, Steven Bochco, Peggy Charren, Tom Fontana, Sissy Spacek, and other Oscar, Emmy, Peabody, Tony, and other award-winning creative artists.

We’re pleased the Future of Music Coalition joined us in our Supreme Court filings. FMC is a national non-profit education, research and advocacy organization that seeks a bright future for creators and listeners. FMC works towards this goal through continuous interaction with its primary constituency — musicians — and in collaboration with other creator/public interest groups.

We gratefully acknowledge the work of Andrew Jay Schwartzman and Parul Desai of the Media Access Project, counsel to the Center for Creative Voices in Media in this proceeding.

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Our earlier comments on the case and our brief to the Court are below.

Creative Voices today filed its brief with the U.S. Supreme Court in Fox v. FCC arguing that the FCC’s violated the First Amendment when it ruled that the “fleeting expletives” uttered by Cher, Nicole Ritchie, and Bono were “indecent.” As an intervening party in the case, Creative Voices argued that the FCC’s arbitrary enforcement of its indecency rules has created a “chilling effect” that harms creative artists and the general public.

The brief and press coverage are linked below.

After the Supreme Court’s initial decision in Fox, we wrote:

Creative Voices had a few choice words to say — none of them expletives — after the U.S. Supreme Court upheld the FCC’s flawed indecency decisions in Fox v. FCC — the Cher, Nicole Ritchie, and Bono “fleeting expletives” case. As an intervening party in the case, Creative Voices argued that the FCC’s arbitrary enforcement of its indecency rules has created a “chilling effect” that harms creative artists and the general public.

We look forward to returning to the Second Circuit, at the Supreme Court’s invitation, to now try the question of whether the FCC’s decision to censor Fox Television for these fleeting expletives violated the First Amendment right to freedom of speech.

After the Court’s ruling, Creative Voices issued this statement:

Polls consistently show that the vast majority of Americans, including parents of young children, prefer to decide for themselves what to watch on TV, rather than have the government decide for them. The First Amendment gives them that right. We are disappointed that the Supreme Court upheld the overly-expansive content restrictions imposed by the Bush Era FCC that continue to put at risk the very kinds of broadcast television that many parents want their children to watch, including high quality PBS documentaries, histories, and dramas. We are pleased, however, that the Supreme Court remanded this proceeding to a lower court to address the constitutionality of these restrictions, and we look forward to participating.

We gratefully acknowledge the excellent work of Andrew Jay Schwartzman of the Media Access Project, counsel to the Center for Creative Voices in Media in this proceeding. MAP is a thirty seven year-old non-profit public interest telecommunications law firm.

The Center for Creative Voices in Media is a nonpartisan nonprofit group dedicated to preserving free speech, free expression, and independent and diverse creative voices in our nation’s media. Members of the Board of Advisors of Creative Voices include Warren Beatty, Steven Bochco, Peggy Charren, Tom Fontana, Sissy Spacek, and other Oscar, Emmy, Peabody, Tony, and other award-winning creative artists.

Big Chill: How the FCC’s Indecency Decisions Stifle Free Expression, Threaten Quality Television, and Harm America’s Children, our report documenting numerous incidents of censorship and the insidious harm of the “chilling effect,” was attached to the Supreme Court brief as an appendix. The Big Chill report is available here.

Our earlier comments on the Second Circuit Court of Appeals reversal of the FCC’s indecency decisions are below:

Creative Voices applauds the U.S. Court of Appeals ruling in Fox v. F.C.C. that the Commission’s indecency decisions in Golden Globes (the Bono “F-word” case) and subsequent cases were “arbitrary and capricious,” and therefore unlawful. Creative Voices was an intervening party in the case.

In response to the US Second Circuit Court of Appeals decision in Fox v. F.C.C., the following statement was issued by Jonathan Rintels, Executive Director of the Center for Creative Voices in Media:

The Center for Creative Voices in Media applauds today’s ruling by the U.S. Court of Appeals for the Second Circuit in Fox v. F.C.C. that the Commission’s indecency decisions in Golden Globes (the Bono “F-word” case) and subsequent cases were “arbitrary and capricious,” and therefore unlawful. Creative Voices was an intervening party in the case.

These overly broad and arbitrary Commission decisions put creative, challenging, controversial, non-homogenized broadcast television programming at risk. In many cases, the very kinds of television programs that parents want their children to watch – high quality documentaries, histories, and dramas – were affected. Thus, the chilling effect of these now-overturned Commission decisions harmed not only media artists, but the American public. We documented this chilling effect in our report filed with the court, Big Chill: How the FCC’s Indecency Decisions Stifle Free Expression, Threaten Quality Television, and Harm America’s Children, available on our website. We’re pleased the court agreed.

Last April, the FCC told Congress that it could give the Commission new powers to regulate so-called “violent” broadcast television content, however that might ultimately be defined. In light of today’s clear Court of Appeals ruling that the FCC has abused its discretion to regulate television content, and acted “arbitrarily and capriciously,” it would be extremely unwise – even irresponsible — for Congress to now grant these exponentially expanded new powers to the Commission.

The Center for Creative Voices in Media is a nonpartisan nonprofit group dedicated to preserving free speech, free expression, and independent and diverse creative voices in our nation’s media. Members of the Board of Advisors of Creative Voices include Warren Beatty, Steven Bochco, Peggy Charren, Tom Fontana, Sissy Spacek, and other Oscar, Emmy, Peabody, Tony, and other award-winning creative artists. Contributions are tax-deductible.