No Room for Common Sense on the Public Airwaves?

ACLJ & Members of Congress Ask the Supreme Court to Protect America’s Kids by Upholding the FCC’s Indecency Policy

WASHINGTON, June 11, 2008—The American Center for Law and Justice (ACLJ), the nation's top conservative public interest law firm, has filed an amicus brief on behalf of 18 members of Congress asking the Supreme Court of the United States to protect America's children from flagrant profanity.  The ACLJ is petitioning the nation's highest court to overturn a lower court decision and uphold the indecency policy exercised by the Federal Communications Commission (FCC) by issuing fines after expletives were uttered during a nationally-broadcast awards show. 

"The FCC acted appropriately in punishing the broadcasters who aired the expletives and clearly acted in the best interest of the viewing public-especially children," said Jay Sekulow, chief counsel of the ACLJ.  "There's a tremendous responsibility afforded to those who use the public airwaves and the FCC's indecency policy is not only necessary but appropriate.  The FCC's indecency policy affords children greater protection from the harm occasioned by exposure to indecent material without infringing the constitutional rights of adults.  We're hopeful the high court will overturn the lower court decision and restore to the FCC its proper role and authority."

In its friend-of-the-court brief filed with the high court, the ACLJ contends the FCC's policy is constitutional and its actions appropriate even if only a single expletive is uttered.

The ACLJ brief contends: "Rather than forcing the FCC to ignore harm to children simply because offensive material is uttered in isolation, this policy allows the FCC to weigh all the relevant contextual factors before determining whether material is indecent.  As previous FCC decisions demonstrate, consideration of the entire context of broadcast material may result in a determination that expletives are not actionably indecent even when repeated throughout a program.  The FCC should be free to apply this context-based approach in a consistent manner, regardless of how many times offensive material is broadcast in a single program."

The ACLJ represents itself and 18 current members of the U.S. House of Representatives:  Charles Pickering, Roscoe Bartlett, Kevin Brady, Paul Broun, Danny Davis, John Doolittle, Mary Fallin, Trent Franks, Wally Herger, Jim Jordan, Doug Lamborn, Kenny Marchant, Jeff Miller, Marilyn Musgrave, Joe Pitts, Mark Souder, Tim Walber and Dave Weldon.

The ACLJ argues that the indecency policy "will allow the FCC to afford greater protection to children when they are likely to comprise a significant portion of the broadcast audience."  The ACLJ brief also contends that "it is essential that this policy be respected by broadcasters and upheld by this Court."

Further, the brief notes the indecency policy gives the FCC discretion in taking action noting that the regulatory agency did not take action in 2005 after an unedited version of the movie "Saving Private Ryan" aired-saying that the movie was not "patently offensive, and therefore not indecent."

The ACLJ brief contends: "The Commission's new policy will not affect the ability of adults to continue to access such material during the safe harbor period and, as the ‘Saving Private Ryan' decision demonstrates, even prior to that time if the overall context indicates that the material is not patently offensive, as, for example, when it has been used for a legitimate artistic, historical, political or scientific purpose rather than simply to ‘pander, titillate or shock.'"

Click here to read the ACLJ amicus brief.

The Supreme Court will hear oral arguments in the case next term. The case before is FCC v. Fox (No. 07-582).

Led by Chief Counsel Jay Sekulow, the American Center for Law and Justice focuses on constitutional law and is based in Washington, D.C.  The ACLJ is online at www.aclj.org.  The ACLJ's online newsroom can be accessed at www.DeMossNewsPond.com/ACLJ.

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