Creative Voices asked the Second Circuit to do what it did last year in Fox v. FCC: reverse yet another arbitrary and capricious FCC indecency decision that puts creative, challenging, controversial, non-homogenized broadcast television programming at risk.

As the Court found in reversing the FCC’s decision in Fox, the Commission’s enforcement of its indecency rules has been vague, arbitrary, insufficiently attuned to the context and quality of the program, and bears no relation to “contemporary community standards,” as the Commission’s own rules require. The FCC’s decision in NYPD Blue suffers from the same flaws and the court should reverse it as well.

Creative and artistic choices in television programming should be made by media artists and broadcasters, not government regulators. The result of these arbitrary decisions is a verifiable “chilling effect” of increasing amounts of self-censorship of protected speech by media artists and broadcasters, as documented in our report filed with the court, Big Chill: How the FCC's Indecency Decisions Stifle Free Expression, Threaten Quality Television, and Harm America's Children. In many cases, these overly broad Commission decisions put the very kinds of television programs that parents want their children to watch – high quality documentaries, histories, and dramas – at risk of not being aired or never being made.

Today, with the V-chip, the ratings system, programming information widely available in print and on the Internet, and cable and satellite boxes that can block programs and channels, there are many technological options for parents to avoid television programming some might find offensive for their children. And there are always the low-tech alternatives of changing the channel or turning the television off.

There are also regulatory remedies for addressing the issue of objectionable television programming than censoring the content of television shows. In broadcast television, the increasing consolidation of television station ownership has made stations operated by non-local owners unresponsive to local community concerns about coarse content, as documented in our report, “Ownership Concentration and Indecency in Broadcasting: Is There a Link?”

Creative media artists understand the Commission’s desire to address complaints, some well-founded, about television programming. But the Commission’s ‘cure’ for indecent programming is proving worse than the disease. It does not serve the public’s interest – including the interest of America’s children -- in a vibrant, diverse, creative, and challenging media. It turns the Commission, and the small group of determined activists who bombard it with canned indecency complaints, into the arbiters of what all Americans can watch in the privacy of their own homes. Polls consistently show that the vast majority of Americans prefer to decide for themselves what to watch on TV. The First Amendment gives them that right.

Broadcasting & Cable interviewed Creative Voices' Jonathan Rintels about the impact of the FCC's recent decision that a scene of NYPD Blue aired five years ago was "indecent."

Rebutting the FCC's Ruling
-- Broadcasting & Cable, 2/25/2008

ABC last week filed an appeal of the FCC's proposed indecency fine against a 2003 airing of NYPD Blue that clearly showed the backside (and quite a lot of the rest) of an attractive female character as she was preparing to step into a shower.

Jonathan Rintels, executive director of the Center for Creative Voices in the Media, a nonprofit group that promotes free speech in the media (and includes NYPD Blue creator Stephen Bochco on its executive board), talked with B&C's John Eggerton about the implications of the decision.

What would be the impact on the public and content creators if the FCC's fine was allowed to stand?

We always talk about the gray area and the line between indecency and what's allowable on television. What this decision did was to make this gray area exponentially larger. This scene that they are fining on NYPD Blue was obviously looked at by network standards and practices, who are experts in that area and do their jobs very well. It was allowed through by the lawyers. And yet the FCC decision comes back as though it is pornography.

The rhetoric the FCC uses indicates this scene, which was allowed by ABC executives, is far over the line. They used language like “graphic,” “repeated pandering,” “titillating” and “shocking.” Who knows where the line is now? It is all gray. How is a network supposed to respond to that?

Without FCC censors, wouldn't TV producers be completely unrestrained in their choices of images and words?

No, clearly not. Look at how far the FCC had to reach back in order to make this statement—five years, and just before the statute of limitations expired. There has not been in the five intervening years an exponential increase in scenes like this. To the contrary. The atmosphere and the environment that the FCC itself has generated has toned down network broadcast television considerably, I think.

Are you saying that is a good thing?

No. I think it is a bad thing in that it is repressing legitimate free speech and speech that is not indecent. Networks, creative artists and the public suffer, as a result. I don't think the networks would put that NYPD Blue scene on today, or in the last couple of years. Is that a good thing? I don't think it is indecent, so I think the current environment is causing the censorship of speech.

ABC contends the FCC's decision was arbitrary and capricious. Would you agree?

Completely. The FCC could have said: “This is over the line but it is close to the line…” But that's not what they said. They said, “This is so far beyond the line,” which it is not. I think the vast majority of people would not characterize it in that way and would instead say that it is completely in keeping with contemporary community standards.

Should the FCC be out of the content regulation business?

No, but our position is that the line has to be clearly drawn and crystal clear so that creative people can speak and write and create up to the line, without going over it.

But right now, it is so gray that you don't know when something that is five years old can suddenly rise up and be categorized by the FCC as being indecent. How does that impact the [present]? Are there now things that will be categorized as indecent that everyone had presumed were not indecent? How does that impact creative people going forward?

Given the bipartisan support for the FCC's indecency standards, do you feel the commission can draw a clear line for enforcement?

I once did. Not anymore.

Read the entire interview at Rebutting the FCC's Ruling - Broadcasting & Cable.

Visit Creative Voices' Podcast Page to hear our interviews with Steven Bochco, Vin Di Bona, Peggy Charren and others about government censorship of creative media artists, here.