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Former FCC Chairs Slam Commission's 'Victorian Crusade'

They're back and they're gunning for the FCC's indecency enforcement regime.

That FCC policy currently under legal challenge has once again united deregulatory Republican FCC Chairman Mark Fowler and "Vast Wasteland"-decrying Democratic Chairman Newt Minow in opposition to what they say has "all the earmarks of a Victorian crusade."

That came in an amicus brief to the Supreme Court, which is hearing the FCC and administration's challenge to the Second Circuit Court of Appeals rulings that its indecency findings against profanity on Fox awards show, and indecency fine ($1 million-plus) against scripted nudity on ABC's NYPD Blue were unconstitutionally vague and chilling.

"[T]he Commission's arbitrary and excessive enforcement policies have exceeded anything contemplated by the Court in Pacifica and should be struck down," the former chairmen wrote, joined by other former commissioners and FCC officials.

"In pursuit of a policy of protecting children against exposure to offensive language," they said, "the Commission has embarked on an enforcement program that has all the earmarks of a Victorian crusade. To effectuate its new clean-up-the airwaves policy, the Commission has radically expanded the definition of indecency beyond its original conception; magnified the penalties for even minor, ephemeral images or objectionable language; and targeted respected television programs, movies, and even non-commercial documentaries."

NYPD Blue, for example, was a multiple-Emmy winner from Stephen Bochco. The FCC back in 2006 also ruled that the use of the F-word by musicians in a jazz documentary by Martin Scorsese for noncommercial TV was indecent.

The FCC has defended its policy by saying it needs to look at context rather than set bright-line rules that could be overly prescriptive. But the chairmen argue that there is too much room for mischief in the contextual approach the FCC has taken. "[T]he banner of "context" masks subjective and arbitrary value judgments. With no discernible standards to the Commission's ad hoc enforcement regime, broadcasters inevitably steer far clear of the margins, taking with them much constitutionally-protected expression. By its vagueness, the Commission's policy casts an intolerably overbroad net by First Amendment standards."

But they are not asking for bright lines either. In fact, they say the lines drawn between broadcast and other electronic media are no longer sustainable. "The First Amendment cannot tolerate discrimination against one of several like speakers. It is time for this Court to declare that the same First Amendment principles apply to all media." That is a point most of the major networks have been making to the High Court.

The former FCC officials say they know well the political and "popular" pressures the commission is under. That has included hundreds of thousands of complaints from members of the Parents Television Council, for example. Nonetheless, they say, "the Commission has no warrant to subordinate fundamental First Amendment principles to the censorial demands of public moralists or their political representatives."

Joining in the brief are University of Virginia Law Professor Emeritus and former FCC Commissioner Glen Robinson, and former FCC General Counsel Henry Geller, chief of staff to Fowler Jerald Fritz, and Kenneth Robinson, former senior advisor to FCC Chairman Al Sikes.  

Essentially the same group of officials -- plus the late acting FCC Chairman Jim Quello -- leveled the same "Victorian crusade" charge against the commission and its indecency enforcement regime back in 2008.

FCC Chairman Julius Genachowski, who is a big fan of Minow, inherited the enforcement policy and the legal baggage of court challenges and smackdowns that went with it. The FCC has not issued any fines or findings during his tenure -- he took the helm in summer 2009.  But the FCC's enforcement regime has also been in limbo during the ongoing legal challenges. Both the Third and Second Circuits have reversed FCC decisions in the Fox and ABC cases, as well as the most prominent, the fine of CBS stations over the Super Bowl half-time reveal. But the FCC under Genachowski continues to defend its indecency and profanity enforcement policies in those court challenges.