"Indecent" Broadcasts
First-Amendment rules for broadcast are
different than for other media. That's because the broadcast
spectrum is considered a scarce resource that must be regulated
to ensure an orderly, effective means of communication. This
governmental foot in the door has led not only to assigning
broadcast frequencies but also to content regulation. So while
the very narrow class of material called "obscenity"
can be outlawed in any medium, only in broadcast can the more
broadly defined "indecency" be prohibited. This
is done mainly under the rationale of protecting children.
The indecency law is at 18 U.S.C. - 1464,
and the Federal Communications Commission is empowered to
penalize broadcasters who violate the statute. The FCC defines
indecency as material that
"describes or depicts, in terms patently offensive as
measured by contemporary community standards for the broadcast
medium, sexual or excretory activities or organs." Unlike
obscenity, it's not limited to material devoid of political
or artistic value.
In 1978 the Supreme Court issued a landmark
ruling on the constitutionality of banning indecency. The
case, Federal Communications Commission
v. Pacifica Foundation, arose as follows: A New York
radio station broadcast the 12-minute monologue titled "filthy
Words," by satiric comedian George Carlin. The monologue
focused on seven words which, by Carlin's own description,
"you couldn't say on the public airwaves." Carlin
repeated the words frequently, demonstrating how each is used,
in the mid-afternoon broadcast.
The station warned in advance that the
language might offend listeners. Nevertheless, a man who apparently
missed the warning heard part of the monologue while driving
with his young son. He later complained to the FCC, and the
agency ruled that the station owner, Pacifica Foundation, was
in violation. Pacifica appealed to the courts.
The Supreme Court, in a 5-4 decision, upheld
the FCC ruling. Though the recording was not obscene and would
be protected in other contexts, the Court said the indecency
prohibition was justified because (1) broadcasting has a uniquely
pervasive presence in Americans' lives, and (2) the broadcast
program was uniquely accessible to children. The Court emphasized
that its ruling was a narrow one and that such variables as
the time of the day, the composition of the audience, and
the context of the program in another case could produce a
different result.
For almost a decade following Pacifica,
the FCC took a very limited approach to enforcing the indecency
prohibition. It limited investigations to material broadcast
before 10 p.m. when children were most likely to be in the
audience.
Then in the late 1980s the FCC and Congress
adopted a new, get-tough approach. In two cases the FCC found
radio broadcasts in violation even though they aired after
10 p.m., the time period previously deemed a "safe harbor"
for adult-oriented programming. And Congress decided the time
was right to clamp down on TV sex and raunchy radio humor
altogether, passing a statute ordering the FCC to enforce
the anti-indecency law 24 hours a day.
In 1991 the federal Court of Appeals said
broadcasts that are indecent but not obscene are protected
by the first Amendment, and it interpreted Pacifica
to mean some kind of safe harbor for adult programming was
constitutionally required. The court struck down the 24-hour
ban and directed the FCC to conduct thorough research and
then set reasonable safe harbor hours.
Years of politically charged maneuvering
and more court cases followed. Eventually the FCC was forced
to return to a safe harbor for "indecent" content between
10 p.m. and 6 a.m.
In 2003 and 2004 the debate over indecency
exploded into one of the hottest topics in communications
law and in politics thanks to a couple of high-profile
events. During a live, televised awards show in 2003 the rock
star Bono said, "this is really, really fucking brilliant."
The FCC staff concluded that, in context, it was not illegal
indecency. But then came a one-second glimpse of singer Janet
Jackson's breast during the halftime show of the 2004 Super
Bowl. Many viewers were outraged, and Congress and the FCC
felt the pressure. The FCC, reversing its own staff, decided
that Bono's expletive was indecent, after all. And the commission
assessed a hefty $550,000 fine for the halftime mishap. fined
even more that year was a Fox Television show that depicted
scenes from bachelor and bachelorette parties in Las Vegas.
Though the private parts of strippers were obscured in the
show, the FCC said the pixilation was not sufficient to diminish
the blatantly sexual nature of the scenes. Proposed fines
of $7,000 for each Fox affiliate amounted to nearly $1.2 million.
Broadcasters involved in some of the 2004
cases vowed to appeal the fines, and courts are likely to
supply some relief. But the political wind was blowing toward
a socially conservative cleansing of the airwaves. Lawmakers
drastically increased the allowable fines per incident, and
Congress and the FCC considered ways to further tighten enforcement
procedures and extend the reach of indecency prohibitions
to other media, such as cable TV.
Many broadcasters today complain of a chilling
effect on serious and artistic expression. This issue is likely
to see many more years of political wrangling and court decisions.
