Religious broadcasters have told the Supreme Court that they think indecent speech, as "reasonably" defined by the FCC, should continue to be an acceptable exception to free speech protections.
But beyond that, they argue that indecent airing within the FCC's 6 a.m. to 10 p.m. prohibited window -- when the FCC has said children are most likely to be in the audience -- is tantamount to obscenity. Obscenity is illegal, period, not simply subject to regulation by the FCC.
While the National Association of Broadcasters has said it is looking for clearer guidance, not freedom from all indecency regs, NRB's equating indecency with obscenity removes the First Amendment shield entirely, as the group recognizes.
"Because indecent content carried over broadcast airwaves during children's viewing hours is legally tantamount to obscenity, both can be restricted constitutionally without imperiling the generous breadth of the Free Speech provisions of the First Amendment regarding other forms of expression," it said in an Amicus brief in the High Court's review of the Second Circuit's reversal of the FCC's indecency finding against Fox stations for profanity on a Billboard Awards show.
"Upholding the policy against indecency gives the Supreme Court a chance to lay down a sensible First Amendment yardstick, affirming those few, traditional, narrow exceptions to free speech when it comes to areas like indecency and obscenity, while at the same time recognizing the wide expanse of expression that should be left fully protected under the First Amendment, including Christian content over the airwaves," said NRB in its brief.
The Second Circuit said the FCC's indecency policy was unconstitutionally vague, but NRB says the "contemporary community standards" test in the FCC's rules should have been plenty of notice to broadcasters. It also said the court had misapplied Pacifica, and did not understand the FCC's legitimate reasons for finding a difference between swearing in Saving Private Ryan," which it did not find indecent, and a blues documentary, which it did; and had misjudged the harm to broadcasters of the policy given that they had ways to avoid sanctions through tape delays or bleeping (although the FCC has signaled that bleeping was actually not insurance against an indecency finding).