29 March 2017

Dear Ms. Geri E. Rozanski,

Ever since its creation nearly 100 years ago, the American Civil Liberties Union (ACLU)

has stood for protecting the Constitutional rights of United States citizens. The emergence of

your activist organization started with several prominent leaders coming together to protect the

right to free speech of those who held and proclaimed controversial opinions of their time. As the

Director of Affiliate Support & Nationwide Initiatives for the ACLU, I am reaching out to you

specifically to ask for your help in challenging some of the tight restrictions the Federal

Communications Commission (FCC) has regarding broadcasted content. I believe, and I presume

yourself and many of your constituents do as well, that artistic freedom is a critical aspect of our

current society and a principle that the United States of America was founded upon. In general,

the FCC does promote similar interests to your organization when it comes to preserving the

right of free speech of American citizens. At the same time, I think certain regulations of the

FCC restrict artistic expression throughout culture; I believe this is done by the FCCs policies

preventing individuals from describing their own lives and experiences, not allowing consumer

and parental choice in personal preferences, and inconsistencies between treatment of different

perceived vices.

Before I discuss which policies of the FCC I would like your help in addressing, I first

want to emphasis that the FCC and the ACLU do, for the most part, share a common ground in

the effort to protect free speech. The FCC is barred by law from preventing a broadcast of any
particular point of view, as long as that view does not present a clear and present danger of

serious, substantive evil (FCC). The FCC, like the ACLU, also maintains that even unpopular

and offensive statements and expressions are protected by the Constitution. Additionally, the

FCC has played a substantial role in ensuring that radio broadcasts are able to reach Americans

throughout the country. This Commission has regulations ranging from wave frequency

specifications to protect peoples health and create better signals (ECFR 73.37-73.57) to

maintaining noncommercial, educational programming to all citizens with some form of access

to a television (ECFR 73.621). Ultimately, the point is that we should still recognize that the

FCC does many positive things for promoting and preserving not only freedom of speech, but

expanding the platform from which that right is expressed. The FCC has had several landmark

rulings involving the internet as well, most notably ensuring that the internet and net neutrality

are a human right; the FCC also states that the internet should be a place of freedom of

expression just like any other medium (FCC).

While the FCC has done great things for free speech, I believe one area that should be

changed is its rules about obscene material. I believe that obscene behavior, as defined by the

Miller Test in the 1973 U.S. Supreme Court Case Miller v. California, often doesnt give artists a

fair case to express their music. The Miller Test, often called the three-pronged test, as defined

by the ruling states that the FCC has the right to censor broadcasts of material which the

average person finds would not meet up to community standards, which descibes, in an

offensive way, sexaul conduct specifically defined by the applicable state law, and which as a

whole, lacks serious literary, artistic, political, or scientific value. In theory, this does sound like

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a reasonable request; however, in application it limits the artist from expressing not only himself

or herself, but also from expressing the society around them.

Beginning in the 1950s and 1960s, the emergence of drugs and sex in music coincided

with the rise of their acceptance by the youth of the era. Shortly after in 1971, the FCC

threatened to revoke the broadcasting licenses of any stations that played songs glorifying drugs

(Hall). This lead to many artists, including John Lennon, having their lyrics changed and aired

without their knowledge or consent (Hall). Throughout much of rapper Eminems career, he and

his label have faced heavy censorship and backlash. Much of Eminems music focuses on his

personal life, ranging from his rough upbringing to his new life as a famous celebrity. It was this

focus that allowed him to become the best selling rap artist of all time. Even with such success,

his wildly controversial music has been a problem for radio stations; in 2001, the FCC had

attempted to fine a Colorado radio station for playing the clean version of the song The Real

Slim Shady because it was deemed still too unsuitable for airplay (Dansby).

One of the more notable cases of music being censored involved the 1988 N.W.A. song

Fuck Tha Police, which ignited a political and social firestorm. The song was banned from

radio, public libraries, and department stores, and some even went so far as to try to persecute

any record store that tried to sell it (Suebsaeng). Even with an F.B.I investigation taking place,

Danny Goldberg, who at the time was chairman of the Southern California affiliate of the

ACLU, was among many civil liberty activists who defended N.W.A.s right to expression

(Suebsaeng). This defense does not mean the song isnt offensive, or even that the song produces

an all around positive message towards law enforcement and the community as a whole;

however, it is a proclamation of how the members of N.W.A. felt at the time. The song expressed

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frustrations that many members of the inner-cities, specifically African Americans, had about the

way they had been treated by police officers, and these frustrations originated from very real

instances of abuse of power from the police (Hall). Because of the application of the Miller Test,

the song was deemed to be too offensive for the average member of the community and as a

whole, lacked serious literary, artistic, political, or scientific value. I believe the Miller Test

failed the artist in this case, as sometimes offensive things are what get peoples attention and

can ignite change. Additionally, the song undoubtedly caused society to have a critical

conversation about the treatment of minorities by law enforcement (a conversation which still

continues to this day); in that regard, it seems completely unfair to say the song did not have

serious artistic or political value. It is also worth noting that all the controversy surrounding the

song most likely increased the size of the audience to whom they were sending their message.

One major issue with most of N.W.A.s songs was how it was going to affect the youth of

the country. I believe that censorship should be decided independently by the people of America

in a free market approach, and that is why I think that parents should be the ones controlling

what their kids can listen to or watch, rather than the FCC. Current guidelines state that profane

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material, or content that includes grossly offensive language that is considered a public

nuisance, is restricted to being broadcast from 10 P.M. to 6 A.M. (FCC). This rule is in place try

to limit childrens exposure of more explicit and vulgar content. Like the Miller Test, this rule in

theory has good intentions; however, I believe the restriction plays the role of parenting where it

is not appropriate, and that the rule itself is no longer very effective in modern society.

The rise of subscription and streaming based music channels as well as the prevalence of

cable subscriptions (and obviously the internet) all create venues of which the FCC does not

have legislation over (FCC). In these cases, the broadcast restrictions have no effect; for

situations like this, it is then the parents role to moderate what they are comfortable letting their

children be exposed to. I believe that all restrictions, while helpful some of the time, can be

achieved through good parenting instead of limiting what a station can play. It seems unfair to

cost an artist or producer airtime just because only a portion of the population cannot be exposed

to it. Also, when outside pressures force more mainstream forms of art, with the emphasis

being on mass appeal rather than genuinity, art as a whole can become slightly diminished. As

shown in the situation with N.W.A., the subject matter certainly was something that young

children would not understand; however, it would be equally unfair to make N.W.A. not write

about specific topics just because the topics dont lend themselves to younger audiences.

Ultimately, I believe a proposal for a middle ground would be appropriate- one where parents

have the option to enforce the standard FCC regulations while also having to option to say they

dont want them.

A common theme in these FCC arguments is the differences between older, parental

views and the younger, more liberal views on certain art. This clashing of the cultures creates an

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interesting situation where those who grew up listening to the controversial music of the

1960s-1970s now see their own music as conservative, while viewing todays music as immoral

and needing policing.

It is this difference in the way that broadcasted content is viewed that creates an

inconsistency in the way that the FCC enforces its regulations. Noting the previously mentioned

information, many artists throughout the 1960s-1970s, including John Lennon, had their lyrics

altered for broadcasting (Hall). In todays world, it seems almost ridiculous to think that John

Lennon lyrics would be censored for obscenity. Additionally, many songs by the Beatles, Jimi

Hendrix, the Rolling Stones, etc. allude to or are explicitly mention drug use; however, these

song would never be censored by the FCC today.

These inconsistencies exist in the differences between meanings of songs and the specific

words used in them. For example, the 1981 song Centerfold by the J. Geils Band describes a

protagonist who discovers a girl he went to high school with is now the main feature of a

pornographic magazine. This song, by the current FCC guidelines, would not face censorship

(FCC). On the other hand, the 2016 song Neighbors by J. Cole, which describes J. Coles

personal experience of moving to a rich neighborhood, only to have his neighbors think he is a

drug dealer because he is the only black person in the entire area would face censorship; this

would be because of the colloquial use of the n-word by the black artist, as well as the continual

lyric the neighbors think Im selling dope. The way the rules of the FCC restrict artistic

expression is exemplary shown here, as in the song the listener is initially set up to think that

when Cole admits to selling dope, hes selling drugs; but, in actuality, the use of the word

dope is later revealed to refer to dope music, slang for good music. These two songs show a

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clear instance where the entire meaning of a song can be about a taboo topic and get no

censorship, while another can have a serious message but be censored for using specific words.

I believe that the ACLU holds the same viewpoints that I do when it comes to artistic

freedom, and I again ask for your help to address some of the restrictions that currently are in

place by the FCC and by certain judicial decisions. For almost a century, the ACLU has stood

with preserving the Constitutional rights of United States citizens, and I believe that art should be

expressed without fear of fines or censorship. Ultimately, I request that you, as well as the

entirety of the ACLU, assist me in helping to expand artistic freedom by loosening the

restrictions placed by the Miller Test and ensuring its applied fairly, allowing people to opt out

of the child restrictions in place, and emphasizing context and overall message of the art rather

than nitpicking words. Thank you so much for taking the time to read my request, and I again

would be beyond grateful for your support.

Sincerely,

Nicholas Sonsini

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 Works Cited

United States of America. Federal Communications Commission. Electronic Code of Federal

Regulations. Title 47. Chapter I. Subchapter C. Part 73. N.p., n.d. Web. 29 Mar. 2017.

<https://www.ecfr.gov/cgi-bin/retrieveECFR?gp=&SID=5b8be5bfab148f253724275080

39d7ca&mc=true&n=pt47.4.73&r=PART&ty=HTML#se47.4.73_11730>.

"The FCC and Freedom of Speech." Federal Communications Commission. N.p., 05 Dec. 2016.

Web. 29 Mar. 2017. <https://www.fcc.gov/consumers/guides/fcc-and-freedom-speech>.

D'Onofrio, Kaitlyn. American Civil Liberties Union logo. Digital image. ACLU Fights Voter ID

Laws, Early Voter Suppression. Diversity Inc, 3 Oct. 2016. Web. 29 Mar. 2017.

<http://www.diversityinc.com/news/aclu-fights-voter-id-laws-early-voter-suppression/>.

Hall, R. Andre. "First Amendment Site." First Amendment Site. N.p., n.d. Web. 29 Mar. 2017.

<https://www.lehigh.edu/~infirst/musiccensorship.html>.

Suebsaeng, Asawin. "The FBI Agent Who Hunted N.W.A." The Daily Beast. The Daily Beast

Company, 14 Aug. 2015. Web. 30 Mar. 2017.

<http://www.thedailybeast.com/articles/2015/08/14/the-fbi-agent-who-hunted-n-w-a.html

>.

Dansby, Andrew. "FCC Drops Fine Over Eminem Song." Rolling Stone. Rolling Stone, 09 Jan.

2002. Web. 30 Mar. 2017.

<http://www.rollingstone.com/music/news/fcc-drops-fine-over-eminem-song-20020109>.

Laurence, Rebecca. Parental Advisory Logo. Digital image. NWA: 'The World's Most

Dangerous Group'? BBC, 13 Aug. 2015. Web. 31 Mar. 2017.

<http://www.bbc.com/culture/story/20150813-nwa-the-worlds-most-dangerous-group>.