This case raises questions about the practices and procedures of the Federal Communication Commission in reviewing the content of broadcast material for potential indecency. Sarah Jones is an internationally known poet and performance artist. She wrote a song entitled Your Revolution to expose the often offensive treatment of women in popular hip-hop music. The song employed some of the vocabulary of hip-hop artists even as it criticized the message that such artists convey. On May 14, 2001, the FCC issued a Notice of Apparent Liability concluding that by broadcasting the song, a Portland radio station had apparently violated the statutory prohibition against broadcasting indecent programming and that the station was potentially liable for a fine of $7,000. The broadcaster challenged the FCC but for more than six months the FCC failed to resolve the matter. During that period, however, other radio stations were unwilling to broadcast Ms. Jones’ song, out of fear of exposure to fines imposed by the FCC.
As a result of the "chilling effect" created by the FCC’s Notice of Apparent Liability, Ms. Jones filed suit in federal District Court seeking a declaratory judgment that the song was not indecent and that the FCC’s procedures violated procedural First Amendment principles as set forth in Freedman v. Maryland, 380 U.S. 51 (1965). The District Court dismissed the complaint on jurisdictional grounds. Ms. Jones appealed to the Second Circuit. On Jan. 31, 2003, the NYCLU and ACLU submitted an amicus brief in support of Jones’ appeal. The brief argued that, under Freedman, the First Amendment required that the FCC provide a prompt judicial proceeding at which "the burden of proving that the [speech] is unprotected expression must rest with the censor…" and that the FCC’s procedures did not comport with this constitutional standard. Three weeks after the NYCLU-ACLU brief was filed with the Second Circuit, the FCC issued an order rescinding its Notice of Apparent Liability and concluding that the song was not "indecent."
U.S. Court of Appeals, 2nd Circuit, No. 02-6248 (amicus)