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Copyright Law

: LibraryLaw Blog

Free speech Wins - Newton Minow on Second Circuit ruling against the FCC "fleeting expletives" rule

By Mary


Quick interview with Newton Minow, who joined an amicus brief on behalf of the broadcasters against the FCC. Minow is a former chair of the FCC.

Mary Minow:   What inspired you to join the brief in the case of Fox Television et al v. Federal Communications Commission?

Newton Minow:  Henry Geller, who is an expert in these matters and who served at the FCC as General Counsel when I was there, called my attention to this case. I respect his judgment and I studied it. I concluded that the FCC went too far. When it made a rule against fleeting expletives, that is, spontaneous unrehearsed live statements, I thought they?d gone much too far.

Mary Minow: Did you have any hesitation in going against the Commission that you  chaired under President Kennedy?

Newton Minow: Yes I did. This rule was put in years ago when Michael Powell was Chair of the FCC, under George W. Bush.  For this amicus, a group of former FCC commissioners and staff joined together. We were Democrats, Republicans, a diverse group. All had the interest in changing this law. We said at the beginning of the brief that we all had different views, but on this one subject we all agreed.  I, myself, was particularly offended with the FCC fined a PBS station for a respected drama, for what it considered bad language. ["The Blues: Godfathers and Sons," a documentary by filmmaker Martin Scorsese that contained profanity.]

Mary Minow: You are a crusader for decency in television when it comes to children. [Abandoned in the Wasteland: Children, Television and the First Amendment, coauthored with Craig LaMay]

Yet you joined the side against the FCC, which was trying to shield children. How do you explain that?

Newton Minow:  I want two things. I want children to be protected, and I also want the First Amendment. In balancing these two things, I thought that fleeting expletives in a live program was not something that would affect children. And besides that, advocates for children?s television, for the most part, joined us.

Mary Minow: Then what groups were in favor of the ?fleeting expletives? rule?

Newton Minow:  The Parents Television Council was very much in favor of the rule. But what they were asking for was a form of censorship, which I thought was too much, even though I often agree with them. This was a matter of excess.

Mary Minow: What do you think is the next step? How do you craft a narrower rule?

Newton Minow:  [Laughs?]  I?m sure they?ll work on this now. The court said it could be constitutional if the rule was precise, but that this rule was vague and overreaching. It?s a big challenge. This is really the one place where the government has a hand in regulating a medium, but you?ve got to be very careful. This is a big challenge.

Mary Minow: Anything else you?d like to add?

Newton Minow: Yes. Another factor here is that over-the-air broadcasting is competing with cable. That gives cable an unfair advantage since it isn?t subject to the same regulations.  And I will read your blog

Mary Minow: But isn?t that an argument to regulate the medium that the government has control over?

Newton Minow: There has to be some balance.  Having one regulated and one  unregulated is really unfair. 

Full post as published by LibraryLaw Blog on July 15, 2010 (boomark / email).

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