The FCC’s current indecency policies—the contours of which are presently unknown and unknowable to broadcasters, journalists, and program producers alike—are unconstitutionally vague and create an impermissible chilling effect on protected speech. The current policies, which represent an about-face from the restrained approach that the FCC previously applied, also far exceed the bounds of permissible regulation under the Supreme Court’s decision in FCC v. Pacifica Foundation. Accordingly, the Commission’s continued enforcement of these policies violates the fundamental First Amendment precept, incorporated by Congress into the Communications Act, that the government must tread lightly when venturing to regulate broadcast content. Due respect for First Amendment principles also requires the FCC to defer to licensees’ reasonable good-faith judgments with respect to the types of programming that constitute news or public affairs, as well as the occasions on which it is appropriate to broadcast expletives and/or nudity in order to best present newsworthy program content to viewers and listeners. As it did some thirty-five years ago, RTDNA urges the Commission to exempt news and public affairs programming from the indecency regulation.
RTDNA will continue its efforts to press the FCC to reform its regulation and enforcement of broadcast indecency rules and we'll keep you up to date on developments.