The American Civil Liberties Union -- joined by the Directors Guild of America, the American Federation of Television and Radio Artists and several others -- told the Supreme Court the Federal Communications Commission has no business regulating any speech short of outright obscenity. ACLU et al said the court must go beyond a narrow ruling on whether or not the FCC violated the Administrative Procedures Act by not giving broadcasters sufficient notice of its decision to start finding fleeting profanities indecent. Instead, they said, the court "cannot avoid the constitutional issues that are at the heart of this case." And if it does not avoid those issues, the petitioners said, "The entire indecency regime, in light of 30 years' experience, can no longer be justified by any constitutionally permissible construction of the statute." The groups continued, "Technological developments since Pacifica [the Supreme Court decision upholding the FCC's indecency authority] indicate that the rationale for censorship of nonobscene broadcasting has lost whatever persuasive force it once may have had. Given cable television, the Internet and other electronic media today, broadcasting is no longer 'uniquely pervasive' and 'uniquely accessible to children.'" They also argued that the discretion over what content is or isn't indecent inherent in the FCC's indecency-enforcement regime is "unconstitutional censorship." However, the groups stopped short of challenging the spectrum-scarcity rationale that underpins broader regulation of broadcasting.
