This story is taken from an ACLU press release on its own website on 30 November, 2006. Despite the source, it is possible to read between the lines and determine what is actually happening.
The ACLU has filed a brief for itself, and for various “writers, filmmakers, performers and free speech groups” in the Second Circuit Court of Appeals, urging the court to overturn a new standard established by the Federal Communications Commission. These new standards do not have to do with obscenity, but with “indecency.”
The ACLU and these other parties claimed that “the FCC’s efforts to regulate in this area have proven to be constitutionally unworkable.” What the ACLU press release neglects to mention is why the attack is that the FCC rules are “unworkable.” It is because the Supreme Court ruled in Pacifica Foundation v. FCC that the FCC does have the power to regulate “indecency” in broadcast media.
That case, called the “seven dirty words” case, involved the broadcast of a George Carlin routine that all nine Justices agreed was NOT obscene, and WAS social commentary. Still, the Court ruled that regulation of language on the air at times when children might be listening, was constitutional.
The brief seeks to protect “fleeting expletives” from FCC regulation. The brief does not offer a definition of what constitutes “fleeting.”
Among the groups supporting the view that there should be no restrictions on language use on broadcast TV and radio are: Directors Guild of America (DGA), Screen Actors Guild (SAG), Writers Guild of America East (WGAE), Writers Guild of America West (WGAW), PEN American Center and the American Federation of Television and Radio Artists (AFTRA), the Brennan Center, the ACLU and PEN American Center, the American Booksellers Foundation for Free Expression, Creative Coalition, Film Arts Foundation, First Amendment Project, International Documentary Association, Minnesota Public Radio|American Public Media, National Alliance for Media Arts and Culture, National Coalition Against Censorship, National Federation of Community Broadcasters, New York Civil Liberties Union, Re:New Media, and Working Films.
Reading that list gives a clear idea of both the politics and the constitutional views of this whole group. The Constitution should be a weapon to strike down FCC regulation of “decency” in broadcasting. But, the Supreme Court has already ruled to the contrary.