ASPEN, CO – At a speech delivered to the Progress and Freedom Foundation (PFF) in Aspen earlier this week, Commissioner Jonathan Adelstein of the Federal Communications Commission (FCC) sharply criticized recent broadcast indecency rulings issued by the Commission, decisions in which Adelstein was the lone dissenter.According to a copy of Adelstein’s prepared remarks posted on the FCC website, Adelstein stated that he believed that “the Commission’s last batch of decisions dangerously expands the scope of indecency and profanity law, without first attempting to determine whether we are applying the appropriate contemporary community standards.”

Noting that the FCC’s “authority to regulate indecent content over the public airwaves was narrowly upheld by the Supreme Court with the admonition that we should exercise that authority with the utmost restraint,” and that the “Commission has repeatedly stated that we would judiciously walk a ‘tightrope’ in exercising our regulatory authority,” Adelstein argued that the FCC has stepped outside its authority, and founded its decisions on unclear reasoning.

Adelstein asserted that the FCC’s recent order regarding the Super Bowl XXXVIII halftime show broadcast “built on and stretched beyond the limits of our precedent in one of the most difficult cases we have ever decided, the Golden Globe Awards case.”

The Golden Globe Awards Case involved U2’s Bono using the word “fucking” to modify an adjective. The pop singer’s particular use of the word opened up debate as to whether any use of the word “fuck” is “patently offensive,” or whether it is permissible to use “fuck” or other variation of the word, so long as that use does not “describe, in context, sexual or excretory organs or activities,” and so long as the utterance is “fleeting and isolated,” to use the language of the FCC’s ruling in the case.

In his comments to the PFF, Adelstein expressed his dismay over the fallout from the FCC’s ruling.

“The precedent set in that case – any use of the f-word was per se indecent and profane – had been questioned by numerous broadcasters, constitutional scholars, and public interest groups, who have asked us to clarify our reasoning,” said Adelstein.

Instead of clarifying, or perhaps even reexamining their reasoning in the Golden Globe case, said Adelstein, “the majority used it as springboard to add new words to the pantheon of those deemed to be inherently sexual or excretory, and consequently indecent and profane, irrespective of a fleeting and isolated use.”

“By failing to address the many serious concerns raised in Golden Globe Awards, before prohibiting the use of additional words,” continued Adelstein, “we fell short of meeting the constitutional standard and walking the tightrope of a restrained enforcement policy.”

Due to the FCC’s failure to act on petitions for reconsideration of the Golden Globes case filed over two years ago, Adelstein said, “the Commission has had to take the embarrassing step of asking the 2nd Circuit Court of Appeals to remand to the FCC a number of indecency cases in the Omnibus Order that were squarely based on Golden Globe Awards.”

Adelstein warned of the possibility of the FCC losing its regulatory power over broadcast indecency altogether, a warning that is nothing new from Adelstein.

“At the time of the Omnibus decision, I cautioned that the Commission’s careless approach endangered the very authority we so delicately retained to enforce broadcast decency rules,” Adelstein said in his address to the PFF. “I warned that, if the Commission’s zeal leads it to overstep its statutory authority, the Commission could find its authority circumscribed by the courts.”

Due to overstepping its authority, Adelstein said, the FCC “may forever lose the ability to prevent the airing of indecent material, barring an unlikely constitutional amendment setting limits on the First Amendment.”

Of particular concern to Adelstein was the FCC’s ruling on The Blues, a documentary film series on blues music that aired on the Public Broadcasting System (PBS).

“It was clear from a commonsense viewing of the program that coarse language is a part of the culture of blues musicians and performers,” said Adelstein. “To accurately reflect their viewpoint and emotion for blues music requires the airing of certain material that, if prohibited, would undercut the ability of the filmmaker to convey the reality of the subject of the documentary.”

Over Adelstein’s objection, the FCC ruled the documentary indecent, a ruling that has already demonstrated a chilling effect, as Adelstein noted in his speech to the PFF.

“As a result, PBS and other news and information outlets are forced to take extra steps of precaution to avoid the wrath of the Commission,” said Adelstein. “They’re now perplexed about what to do with a WWII documentary by Ken Burns.”

“If Saving Private Ryan was acceptable, why not real soldiers talking about the same conflict?” asked Adelstein.

Further, if the FCC rules that is permissible for such language to be included in the Ken Burns documentary “if you can’t say it in a blues documentary, why can you say it in a war documentary?” Adelstein asked.

“You can see us tying ourselves in knots and confusing everyone,” complained Adelstein. “That’s not the restraint the Commission promised the Supreme Court in Pacifica.”

Adelstein concluded his remarks on indecency with a call for greater balance between providing “clean” airwave and protecting free speech.

“As a father of two, I believe that the government has a legitimate interest in protecting children from indecent and overly commercial content,” Adelstein said. “I fully support that, and have participated in stepping up our enforcement efforts. But I also believe that, as government officials, we are sworn to uphold the Constitution, and need to avoid overstepping our bounds.”