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Indecency regulation: beyond broadcast?

By David L. Hudson Jr.
First Amendment Scholar

The Federal Communications Commission currently regulates indecency on broadcast television but not on cable television or DBS — direct broadcast satellite TV or radio. But could that change?

In recent years the FCC and Congress have expanded or attempted to expand government regulation of indecent material to advance the laudable goal of protecting minors. For example, Congress passed the Broadcast Decency Enforcement Act, which President George W. Bush signed in June 2006. This measure increased financial penalties tenfold for indecency violations on broadcast TV. Congress passed the measure in the wake of the controversial 2004 Super Bowl halftime show featuring Janet Jackson’s infamous “wardrobe malfunction.”

Members of Congress have introduced measures to regulate indecency on broadcast and cable television, and some have included satellite. The most aggressive of these proposals was West Virginia Democratic Sen. Jay Rockefeller’s Indecent and Gratuitous and Excessively Violent Programming Control Act of 2005, although it never made it out of committee. Rockefeller and others have introduced a variety of measures to address the perceived problems of indecent and violent content on television. As Rockefeller said in 2005: “Each day, and for hours and hours every day, broadcast, cable, and satellite television outlets indiscriminately barrage our children and families with indecent and violent images.” In 2007 he asserted that “For our children, there is little or no meaningful distinction between the broadcasters and the cable producers.”

The fact that the FCC can regulate indecency on the public airwaves but not on cable or DBS at least partly explains why in October 2004 shock-jock Howard Stern left broadcast radio for Sirius Satellite Radio — to escape further potential crushing FCC fines for his indecent material.

Proponents of government regulation stress society’s compelling need to protect children from harmful material online. Commentator Matthew S. Schwartz argued in a 2007 article for the Richmond Journal of Law & Technology that “if the government is serious about its stated goals of protecting children and the sanctity of the home, then the FCC should expand indecency regulations to cable and DBS.”

Opponents counter that extending FCC authority could lead to rank censorship. Gene Policinski, executive director of the First Amendment Center, wrote in 2007 that “the public ought to be very careful about handing over the national TV remote control to the heavy hand of government so that it can restrict the free choice of some viewers to tune in.”

Still others argue that while distinctions between cable and broadcast seem to have lessened, the FCC should abandon enforcement of broadcast indecency rather than expand into other realms.

Legal framework for regulating indecency
Certain types of sexually explicit material — obscenity and child pornography — receive no First Amendment protection. The Supreme Court has reasoned that the harm from this material far exceeds any possible value in the expression. However, the Court has also approved of the concept of variable obscenity in Ginsberg v. New York (1968), reasoning that material can be obscene as to children (“harmful to minors”) but not as to adults. Society simply doesn’t want harmful material to fall into the hands of minors. However, the government has also attempted to regulate material even beyond the expression prohibited under a harmful-to-minors law. This is the area of indecent expression.

In 1978, the U.S. Supreme Court ruled 5-4 in FCC v. Pacifica Foundation that the government could fine a radio station for playing a George Carlin comedic monologue containing profanity during daytime hours. The case stemmed from an incident on Oct. 30, 1973. John R. Douglas — a member of the group Morality in Media — heard a radio broadcast of Carlin’s “Filthy Words” monologue at 2 p.m. while driving in his car with his minor son in New York. The monologue broadcast on a New York radio station owned by Pacifica repeatedly featured Carlin’s “seven dirty words you can never say on television” — “shit, piss, fuck, cunt, cocksucker, motherfucker, and tits.”

Douglas filed a complaint with the FCC, contending that minors should not be exposed to such profane and indecent comments. The FCC agreed and issued an order in February 1975 that said the station “could have been the subject of administrative sanctions.” The FCC did not impose formal sanctions but placed a letter in the station’s file that could be used to increase future punishments. The FCC determined that “the language as broadcast was indecent and could be prohibited by federal law 18 U.S.C. § 1464,” which prohibits the radio broadcast of “obscene, indecent or profane” speech.

When the case reached the U.S. Supreme Court, the justices ruled 5-4 in favor of the FCC. Justice John Paul Stevens noted in his majority opinion that the speech took place in the broadcast medium, which “has received the most limited First Amendment protection.” He emphasized “two distinctions” between broadcast and other media that justified this lower level of protection: (1) broadcast’s “uniquely pervasive presence” and (2) its accessibility to children. “The ease with which children may obtain access to broadcast material … amply justif[ies] special treatment of indecent broadcasting,” Stevens wrote.

The current distinction between broadcast and cable exists in part because the broadcast medium uses limited public airwaves and offers free services, while cable and other media offer subscription-based services and do not use the public airwaves. Cable television transmits programming through fiber-optic cables rather than over the air.

Some contend that the distinction between broadcast and cable is no longer tenable, particularly based upon the two justifications offered in Pacifica. They point out that cable television has acquired a “pervasive” presence and that children easily can obtain access to indecent material on cable. Congress already can punish obscenity transmitted over cable via 18 U.S.C. Sect. 1468(a), which provides: “Whoever knowingly utters any obscene language or distributes any obscene matter by means of cable television or subscription services on television, shall be punished by imprisonment for not more than two years or by a fine.” To tackle indecency in addition, Congress seemingly could simply amend 18 U.S.C. Sect. 1464, which criminalizes “any obscene, indecent or profane language by means of radio communication.” Could Congress constitutionally amend this statute by adding the words “or cable or other subscription-based services”?

Lower courts that have grappled with this question struck down state or local laws that sought to prohibit indecent programming on cable. In Cruz v. Ferre (1983), a federal district court in Florida invalidated a Miami city ordinance that provided: “No person shall by means of a cable television system knowingly distribute by wire or cable any obscene or indecent material.” The federal district court cited a litany of differences between the broadcast and cable media, concluding Pacifica “inapplicable” and the law unconstitutional.

Later Supreme Court decisions have emphasized the distinction between broadcast and cable or other media. For example, in Turner Broadcasting System v. FCC (1994), the Court wrote: “In light of these fundamental technological differences between broadcast and cable transmission, application of a more relaxed standard of scrutiny in … broadcast cases is inapt when determining the validity of cable regulation.”

But two years later in Denver Area Educational Telecommunications Consortium, Inc. v. FCC (1996), the Court upheld a federal law that allows cable operators to prohibit indecent material on leased-access channels. In reaching its decision, the plurality wrote that cable “is as accessible to children as over-the-air broadcasting, if not more so.” The Court added that cable has “established a uniquely pervasive presence in the lives of all Americans.”

However, the Court in Denver Area still applied a tougher standard to regulations that affect speech on cable. This approach led the Court to invalidate two other cable-indecency laws in the decision.

Several years later, the Court again addressed indecency on cable. In United States v. Playboy Entertainment Group (2000), the Court rejected 5-4 a federal law prohibiting transmission of indecent programming during daytime hours to address the problem of signal bleed — where some indecent material comes through scrambled channels. The Court again addressed the difference between broadcast and cable: “There is, moreover, a key difference between cable television and the broadcasting media, which is the point on which this case turns: Cable systems have the capacity to block unwanted channels on a household-by-household basis.” In Playboy Entertainment, the Court proceeded to apply strict scrutiny — the most rigorous form of judicial review — to invalidate the federal law.

In Reno v. ACLU (1997), the Court struck portions of a federal law that would have criminalized the transmission of patently offensive or indecent communications on the Internet. The Court rejected the government’s arguments under Pacifica and applied strict scrutiny to invalidate those provisions.

Analyzing these decisions for the Congressional Research Service in 2005, Henry Cohen concluded that attempts to regulate indecency in the cable medium would be unconstitutional:

“It appears that a strong case may be made that applying the FCC’s indecency restriction to cable television would be ‘unreasonable’ under this formulation. This is because, as the Supreme Court wrote when it struck down the ban on ‘indecent’ material in the Internet, ‘the Government may not reduce the adult population … to … only what is fit for children.’ In Playboy, the Court, applying strict scrutiny, struck down a speech restriction on cable television, in part because ‘for two-thirds of the day no household in those service areas could receive the programming, whether or not the household or the viewer wanted to do so.’ Thus, it appears likely that a court would find that to apply the FCC’s indecency restriction to cable television would be unconstitutional.”

And First Amendment attorney Robert Corn-Revere wrote in 2006: “Courts consistently have invalidated indecency regulations when applied to cable television both at the local and national level, and the reasons supporting these rulings have only gotten stronger as time and technology have transformed the media landscape. In these circumstances, any effort to extend indecency regulation to cable television or other non-broadcast media would be almost certain to fail a constitutional challenge.” (“Can Broadcast Indecency Regulations Be Extended to Cable Television and Satellite Radio?” 30 Southern Illinois University L.J. 243.)

Continuing controversy, technological answers and the future
The debate over extending FCC indecency rules to cable and other non-broadcast media continues, though there are many other controversies regarding the FCC and television content.

In April 2007, the FCC issued a report recommending legislative action to deal with the problem of violent content on broadcast, cable and other media. Then in June 2007, the 2nd U.S. Circuit Court of Appeals ruled in Fox Television Stations v. FCC that an earlier FCC policy change on “fleeting expletives” was arbitrary. (After years of not pursuing enforcement action against the occasional, stray profane remark, the FCC had changed course.) The appeals court noted that it was "skeptical that the commission can provide a reasoned explanation for its fleeting expletive regime that would pass constitutional muster." The government has appealed the 2nd Circuit ruling to the U.S. Supreme Court.

In June 2007, several members of Congress introduced the Family and Consumer Choice Act of 2007, which observed in its findings that “Parents need more effective ways to limit the exposure of children to television with harmful content by being able to purchase cable programming that only contains programming that is child-friendly.” One provision of the bill would prohibit indecent programming during the daytime on broadcast or cable. The bill was referred to the House Subcommittee on Telecommunications and the Internet in June.

The bill comes at a time when FCC Chairman Kevin Martin pursues his goal for “a la carte” cable programming, which he touts as a pro-consumer choice mechanism that would obviate greater government content regulation. In a letter to several minority groups, Martin stressed that “an a la carte regime would enable viewers to buy their television channels individually, in smaller packages, or in the large packages currently offered.” That would mean subscribers could opt out of channels they felt were inappropriate for their households.

Many believe that the solution to protecting First Amendment values and minors lies more in enhanced technological tools than in pervasive government regulation.

Technology can provide methods for parents to control children’s access to indecent material. For example, a provision of a 1996 federal telecommunications law provided for the installation of the V-chip in television sets above a certain size. While the V-chip has proven to be an effective tool, many insist that much more comprehensive and advanced technologies are needed.

Adam Thierer, senior fellow and director of the Center for Digital Media Freedom, writes that tools such as digital video recorders and video-on-demand services enable parents to control objectionable content without requiring intrusive regulation. “It is impossible to consider video programming an ‘intruder’ in the home when tools exist that can help parents almost perfectly tailor viewing experiences to individual household preferences.”

These technological tools not only could provide the answer to parents’ concerns but also could doom direct content regulations. One of the reasons that the Supreme Court invalidated an online harmful-to-minors law — the Child Online Protection Act — in Ashcroft v. ACLU (2004) was that a less-speech-restrictive alternative existed in the form of filtering software. The Court explained: “Blocking and filtering software is an alternative that is less restrictive than COPA, and, in addition, likely more effective as a means of restricting children's access to materials harmful to them.” One of the reasons the Court invalidated the signal-bleed provision in United States v. Playboy Entertainment Group was the availability of a lockbox alternative.

No one knows the ultimate likely outcome in this cauldron of political pressure, changing legal terrain, a differently composed U.S. Supreme Court and an upcoming election year.

“Ultimately, as in the prior history of FCC content regulation, it will be a complex interaction of legal rules, marketplace developments, technology, consumer pressure and politics that will influence the extent of indecency and violence available on mass media," Professor Lili Levi concludes in her comprehensive report for the First Amendment Center, “The FCC’s Regulation of Indecency.”


Republicans urge satellite, cable indecency rules

National Association of Broadcasters, representing over-the-air TV, also wants same restrictions extended to all television programming. 03.02.05

FCC chief to cable, satellite TV: Clean up your act or else
If industry doesn't find way to police smut, decency standards should be considered, chairman tells Congress. 11.30.05

Government seeks high court review of broadcast-indecency ruling
2nd Circuit said it was 'skeptical that the commission can provide a reasoned explanation for its fleeting expletive regime that would pass constitutional muster.' 09.27.07

FCC seeks $1.4 million for 'NYPD Blue' episode
Agency claims showing woman's bare buttocks in 2003 broadcast was indecent; ABC says finding is inconsistent with prior agency decisions, First Amendment. 01.28.08

Supreme Court takes broadcast-indecency case
First such case in 30 years concerns FCC policy allowing fines against broadcasters for 'fleeting expletives' on their programs. 03.17.08

Justices to examine 'fleeting' expletives
By Tony Mauro Court agrees to review latest version of 30-year-old FCC rules against backdrop of vastly different media landscape. 03.18.08

Surrendering our choices to a sense of decency
By Paul K. McMasters Parents have a wide range of tools to keep indecent programming out of their homes if they wish — but some people seem bound to restrict our choices to their tastes. 04.10.05

TV violence: more program information would be better than regulation
By Gene Policinski Just as with judging sexual imagery and utterances that may be indecent, there are practical problems in defining what depictions of violence cross the line. 05.06.07

Look for ’08 to be year of broadcast-regulation battles
By Gene Policinski Looming showdown likely will redefine what government can regulate regarding what we see and hear, not just on television but also in new media. 12.30.07

Timeline: broadcast decency

FCC TV violence report

The FCC's Regulation of Indecency

More background links on cable-television regulation

Online symposium: TV violence & the FCC

Analysis/Commentary summary page
View the latest analysis and commentary throughout the First Amendment Center Online.

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