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FCC's Tate: need to balance freedom, protection of kids

By Courtney Holliday
First Amendment Center legal intern

  • Panel: Pacifica outdated?

    WASHINGTON — Federal Communications Commissioner Deborah Taylor Tate yesterday emphasized the need for maintaining a balance in broadcast regulation during her opening remarks during the First Amendment Center’s program, “Indecency & Violence in the Media: FCC v. Pacifica 30 Years Later.”

    Tate told attendees that the FCC takes a measured approach in regulating broadcast, working to “balance First Amendment rights with the protection of our most valuable resource, our children.”

    Tate and former FCC chairman Richard E. Wiley provided the commission’s perspectives, present and past, on finding that balance at the event, which was held in the Knight Conference Center at the Newseum to commemorate the 30th anniversary of the ruling in FCC v. Pacifica (1978). Wiley served on the commission when the complaint in the case was filed. The controversy involved an afternoon broadcast on Pacifica radio of the late George Carlin’s “Seven Dirty Words You Can Never Say on Television.”

    FCC Commissioner Deborah Taylor Tate at yesterday's conference

    The ruling in FCC v. Pacifica, which remains the main precedent for regulation of broadcast material, affirmed the FCC’s authority, albeit limited, to take action against Pacifica for airing the broadcast. Additionally, the Court’s plurality opinion, authored by Justice John Paul Stevens, emphasized that certain broadcast expression enjoys limited First Amendment protection due, in part, to its “uniquely pervasive presence.”

    Following Tate and Wiley was University of Miami law professor Lili Levi, who discussed her First Amendment Center report, “The FCC’s Regulation of Indecency.” Levi explained the changes in how the FCC has used its “broadly defined” powers to enforce indecency standards in the decades since Pacifica. She said that although there was a notable avoidance by the commission to regulate television programming from 1987-2002, the “latest era has been one of stringent indecency enforcement.”

    Professor Lili Levi

    More recently, Levi maintained, we have witnessed more stringent FCC regulation of indecency, with greater emphasis on “context.” Levi cited the recent example the FCC’s handling of the Janet Jackson incident during half time of the 2004 Super Bowl, saying that Jackson’s actual exposure would not have received as much condemnation from the FCC had it not occurred at the culmination of a provocative dance scene.

    “Context is often being used not to protect First Amendment freedoms, but rather to exacerbate findings of indecency,” said Levi. She said the FCC often invoked context as an excuse for inconsistent rulings.

    The conference occurred just months before FCC v. Fox Television Stations will be argued before the Supreme Court. The first major high court case concerning broadcast indecency since Pacifica, it involves an FCC policy that legitimates fines against broadcasters for one-time uses of “fleeting expletives.”

    Yesterday’s commemorative program concerning the landmark case also took note of the June 22 death of famed comedian George Carlin. Preceding a panel discussion, First Amendment Center Vice President/Executive Director Gene Policinski introduced a 2002 video clip from the “Free Speech in Comedy” awards held at the U.S. Comedy Arts Festival in Aspen, Colo. In a special edition of the First Amendment Center’s public television program “Speaking Freely,” aired that year, Carlin accepted an award and spoke of his views on censorship and political correctness.


    2nd Circuit: FCC's policy on accidental expletives is arbitrary

    Court sides with Fox TV's challenge, says agency's policy might not survive First Amendment scrutiny. 06.05.07

    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

    Conference to explore media indecency, violence
    ‘Indecency and Violence in the Media’ June 26 marks 30th anniversary of FCC v. Pacifica. 06.24.08

    Panel explores whether Pacifica is outdated
    By Dan O’Neil Discussion also addresses fine line between broadcast regulation, censorship. 06.27.08

    FCC's puritanical actions should be reined in
    By Ronald K.L. Collins Broadcast-regulation agency justifies censorship of indecency in the name of enforcing 'community standards,' but how those are determined is anyone’s guess. 04.08.08

    Carlin: comic who buzz-sawed hypocrisy
    By Ronald K.L. Collins George Carlin may have laid groundwork for the law of free speech to catch up with our culture of free speech.
  • In Carlin's own words 06.23.08

    George Carlin’s free-speech legacy lives on
    By Gene Policinski Comedian got us thinking about what we can say on the air or elsewhere in public — and if we can't say it, why not. 06.29.08

    The FCC's Regulation of Indecency


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