Artists Network of Refuse & Resist!

From the New York Times, January 30, 2002

Songwriter Sues F.C.C. Over Radio Sanctions
By NEIL STRAUSS

In an unusual counteroffensive, a New York poet and performance artist filed suit yesterday against the Federal Communications Commission, charging that it violated her First Amendment rights when it fined a radio station for playing a spoken-word song by her with vivid sexual imagery.

The artist, Sarah Jones, asked for a judgment in federal district court in Manhattan that the 1999 song, "Your Revolution," is not indecent as the agency found; for an injunction preventing the commission from enforcing the $7,000 fine against KBOO-FM, a listener-supported station in Portland, Ore.; and for a finding that the commission's ruling violated her free-speech rights.

Lawyers who specialize in First Amendment cases said it was extremely rare for an artist to intervene legally in a case of this sort, which usually pits the F.C.C. against the station it has sanctioned. The suit also represents a further development in a debate about whether the commission is too strict or too lax in policing the airwaves.

John Winston, the assistant bureau chief for enforcement at the F.C.C., declined to comment on the Jones case.

The dispute began in October 1999 when a listener was offended by the song during a music show called "Soundbox" and complained to the commission. In May, the F.C.C. fined the station for broadcasting "unmistakable patently offensive sexual references" that "appear designed to pander and shock."

The commission prohibits certain things from being broadcast when children might be listening: any of seven objectionable words or material that it deems patently offensive as measured by contemporary community standards, especially references to "sexual or excretory activities and organs."

Ms. Jones said she was surprised that her song was declared offensive because she wrote it as an attack on the degradation of women in mainstream hip-hop. "My name was hanging in the air with `indecent' attached to it in this really problematic way, especially since my work is concerned with social justice and feminist issues," she said yesterday. "That it should be associated with sexual indecency and intending to shock is not something that I can just let sit there, partly in light of the fact that other material is played ad infinitum on mainstream radio airwaves that's really problematic. I'm not one for censorship, but let's not use a double standard that victimizes certain voices."

While the song does not contain any of the seven objectionable words flagged by the F.C.C., it does make explicit sexual references, which paraphrase lyrics from rap songs to denounce them as misogynist and shallow.

In July KBOO contested the fine, but no action has been taken, said Lisa E. Davis, a partner at Frankfurt Garbus Kurnit Klein & Selz, the law firm representing Ms. Jones.

The People for the American Way Foundation, a liberal organization, is working on Ms. Jones's case. "I think it's very clear that the song is not indecent, even under the F.C.C. criteria," said Elliot Mincberg, a vice president and legal director at the foundation.

In recent years the F.C.C. has been buffeted by criticism from within and without, from the left and the right. Some critics charge that it is cracking down too hard on radio, others that it is too lenient. Some say the commission's rules on documenting violations are too strict; others say that its enforcement rules are inconsistent. And still others say its decision- making process on complaints and appeals is too slow.

During the last year, in particular, the commission has been in the spotlight. Complaints against two morning show hosts for sexually explicit banter ÷ one on WKQX-FM in Chicago, the other on WDGC-FM in Durham, N.C. ÷ were dismissed last year because of a lack of documentation. Earlier this month the commission reversed its decision to fine KKMG-FM in Colorado Springs, for playing the Eminem single "The Real Slim Shady" in a version that already had words edited out for radio broadcast.

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