Broadcasters are filing comments on the Federal Communications Commission’s request for feedback on the agency’s indecency rules, key portions of which were struck down by the Supreme Court last year. NPR’s comments support replacing the FCC’s now defunct “fleeting expletive” policies (basically sanctions against even a few dirty words said on the fly) with an “egregious cases ” rule.
The filing notes:
“An egregious cases approach to indecency enforcement should focus on broadcast matter that involves the deliberate use of offensive materials to pander, shock, or titillate. . . . Attempting to prevent all future broadcast indecency by seeking to punish every allegedly indecent or profane utterance clearly has not achieved the desired objective. By focusing more specifically on the graphic and repeated use of sexual or excretory language broadcast with the intention to pander, shock, or titillate, the Commission will more effective achieve its objective and avoid harming responsible broadcasters, including public radio, and the public interest.”
Other NPR suggestions include a clearer safe harbor for news/public affairs broadcasters. In a significant case, the FCC gave news and public affairs shows a pass from strict scrutiny. The agency reversed itself on sanctions for CBS when a guest on The Early Show used the word “bullshitter” in an interview, noting that news and public affairs programs deserve more First Amendment protection.
But NPR wants the FCC to make that assumption more explicit and generic. The Commission “should at least clarify that broadcasters will not be subjected to indecency liability for material contained in bona fide news or public affairs programming even if such matter would otherwise constitute an ‘egregious case’ in another context.”