Tom Boyd
Comms 300
16 Apr. 2013
Introduction
On Apr. 1, 2013, the Federal Communications Commission released a public notice
stating that it had been reviewing its broadcast policy on indecency to ensure that it is consistent
with the First Amendment. The FCC has been bombarded with indecency complaints, and has
closed more than one million complaints since Sept. 2012. Most of the closed complaints were
either outside the FCC’s jurisdiction, contained too little information or were foreclosed by
established precedent. Currently, isolated expletives are considered indecent. The FCC is
considering whether the restriction on these isolated expletives should be removed. Additionally,
the FCC is considered whether isolated, non-sexual nudity should be allowed. The FCC is
seeking comments on whether or not they should alter their current indecency policies. If the
FCC lessens its indecency policies, broadcast television will forever be changed, as stations will
be permitted to have more isolated expletives and non-sexual nudity in their programs.1
History
The first regulation of broadcast speech was in 1948, when Section 1464 was added to
the criminal code. Section 1464 states, “… whoever utters any obscene, indecent, or profane
language by means of radio communication shall be fined under this title or imprisoned not more
than two years, or both.”2
The most notable event that first dealt with indecency and obscenity on broadcast is the
1978 case, FCC v. Pacifica Foundation. This case was brought about by a man who heard
George Carlin’s famously vulgar “Seven Words You Can Never Say on Television” comedy
routine on the radio during the day. The Supreme Court stated the material was indecent and that
the FCC could fine stations that broadcasted indecent material. The Supreme Court gave the
FCC the ability to determine what constituted indecent material.3
Up until 2004, the FCC only took issues with extreme examples of indecency, and
permitted fleeting expletives. However, 2002 to 2004 featured a lot of heavily controversial
material that prompted the FCC to change its stance on the issue. In that time period, the
celebrities Cher, Nicole Richie and Bono dropped f-words and s-words on broadcast television
during interviews. Janet Jackson’s infamous “wardrobe malfunction” during the 2004 Super
Bowl added to the hype. Additionally, there was momentary female nudity on an episode of
1
“FCC Cuts Indecency Complaints by 1 Million; Seeks Comment on Policy.” Federal Communications Commission.
N.P., 1 Apr. 2013. Web.
2
“USC Chapter 61 – Obscenity.” N.p., n.d. Web.
3
FCC v. Pacifica Foundation. Supreme Court. 3 July 1978. N.p., n.d. Web.
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“NYPD Blue.” Many viewers were outraged at these events and claimed that the morality of
America was decreasing.
The outrage across the country caused Congress to put into place the Broadcast Decency
Enforcement Act of 2005. This bill increased the fine broadcasters faced tenfold, from $32,500
to $325,000.4 President Bush stated that the bill was “going to help American parents by making
broadcast television and radio more family-friendly.”5
The case that dealt with the issues between 2002 and 2004 was the 2009 case, FCC v.
Fox Television Stations. The Supreme Court upheld the FCCs decision to fine broadcasters if
they air a single expletive before 10 p.m. The issue was then sent to the lower courts to
determine if the rule was constitutional. The country’s response to the Supreme Court’s decision
was varied. For example, the Parents Television Council said, “it was an incredible victory for
families.” Other groups thought the Supreme Court was out of touch with the world. Ohio State
University Law Professor Christopher Fairman said regarding the f-word, “Tom Hanks can say it
in ‘Saving Private Ryan,’ but on Network TV, Bono can’t say it and Cher can’t say it, but I can
wear it on the back of my jacket… and the court says that’s OK. It doesn’t seem to make sense.”6
The last main development about speech regulation was the 2012 case, FCC v. Fox
Television Stations, which dealt with the constitutionality of the 2009 decision. Judge Rosemary
Pooler said, “…by prohibiting all ‘patently offensive’ references to sex, sexual organs, and
excretion without giving adequate guidance as to what ‘patently offensive’ means, the FCC
effectively chills speech, because broadcasters have no way of knowing what the FCC will find
offensive. To place any discussion of these vast topics at the broadcaster’s peril has the effect of
promoting wide self-censorship of valuable material which should be completely protected under
the First Amendment.” The Supreme Court removed the fine against Fox Television Studios
because the regulation was too vague. The Court also reaffirmed the decision reached in FCC v.
Pacifica by continuing to allow the FCC to regulate broadcast television and radio. 7
Current and Future Issues
In its public notice, the FCC asked whether or not they should “treat isolated expletives in
a manner consistent with our decision in Pacifica Foundation, Inc. (… we believe that deliberate
and repetitive use in a patently offensive manner is a requisite to a finding of indecency.) As
another example, should the Commission treat isolated (non-sexual) nudity the same or
4
United States. Cong. 109th Cong., 2nd sess. Cong. Bill. N.p. : n.p., n.d. Web.
<http://www.gpo.gov/fdsys/pkg/BILLS-109s193enr/pdf/BILLS-109s193enr.pdf>.
5
Bush, George W. “President Signs the Broadcast Decency Enforcement Act of 2005.” The White House. N.p., June
2006. Web.
6
Serjeant, Jill. “Critics Say U.S. TV Obscenity Ruling out of Touch.” Reuters. Thomson Reuters, 28 Apr. 2009. Web.
7
Federal Communications Commission v. Fox Television Studious. Supreme Court. 21 June 2012. N.p., n.d. Web.
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differently than isolated expletives?”8 Different groups and organizations are reacting differently,
and are hypothesizing what effect a change to indecency rules would have on the country.
Tim Winter, President of the Parents Television Council, stated 3 reasons why lowering
the indecency standards is a bad idea. First, “it unnecessarily weakens a decency law that
withstood a ferocious, ten-year constitutional attack waged by the broadcast industry.” Second,
“… it invites yet another wave of special interest pressure to obviate the intent of Congress and
the will of the American people.” Finally, “… it connotes a change in the indecency enforcement
policy at the FCC that nobody knew about.”9
The PTC believes the FCC is giving in to pressure from the broadcast industry, and that
they are catering to broadcasters rather than basing their decisions on what is good for the
American people. The organization is worried that lowering indecency standards will have a
negative impact on the children. Dan Isett, director of public policy for the PTC, said, “…
broadcast television would look like HBO – more nudity, more language, more everything.” 10
The PTC claims that broadcasters already have safe harbor hours to air their indecent material,
and that it is unnecessary to lower the restrictions at a time when children could be watching.
The PTC is highly critical of the FCC, claiming that it is currently not enforcing the broadcast
indecency standards, demonstrated by the organization throwing out over a million indecency
cases.
On the other side of the issue, broadcast stations have reason to support the change. One
of the primary problems broadcast stations have had with current indecency regulations is the
vague nature of it. The FCC defines broadcast indecency as “language or material that, in
context, depicts or describes, in terms of patently offensive as measured by contemporary
community standards for the broadcast medium, sexual or excretory organs or measures.”11
Measuring something by “contemporary community standards” makes it difficult to determine
whether or not something will be considered indecent. For example, the movie “Schindler’s
List,” which contains nudity, was allowed to be broadcast free of penalty, but Fox was fined
because U2’s Bono said the f-word.12
Another problem broadcast stations have with current indecency regulations is that the
FCC determines what is indecent based on context.13 Currently, broadcast stations have
8
“FCC Cuts Indecency Complaints by 1 Million; Seeks Comment on Policy.”
Winter, Tim. “PTC Responds to FCC’s Proposal to Limit Broadcast Decency Enforcement.” Parents Television
Council. N.p., 1 Apr. 2013. Web.
10
Foust, Michael. “Baptist Press – FCC May Drop Ban on TV Nudity, Expletives – News with a Christian
Perspective.” Baptist Press. N.p., 11 Apr. 2013. Web.
11
“USC Chapter 61 – Obscenity.” N.p., n.d. Web.
http://uscode.house.gov/download/pls/18C71.txt>
12
Serjeant, Jill. “FCC Seeks Public Comment in Review of TV, Radio Decency Policy.” Yahoo! News. Yahoo!, 1 Apr.
2013. Web.
13
“Obscene, Indecent and Profane Broadcasts.” Federal Communications Commission. N.p., n.d. Web.
<http://www.fcc.gov/guides/obscenity-indecency-and-profanity>.
9
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difficulties determining whether or not their material will be considered indecent because of its
vague nature and that the fact that each instance will be judged differently. With such vague
guidelines, the FCC is likely to suppress certain viewpoints and situations more than others,
which is against the First Amendment. This has caused broadcast stations to suffer from a
chilling effect. They don’t know if their material will be considered indecent, so they choose to
broadcast less material.
Broadcast stations have assured people that lowering the indecency restrictions wouldn’t
necessarily make television’s morals drop. Due to the chilling effect, stations have been reluctant
to broadcast certain high quality material. For example, a news station might be reluctant to air a
live interview of a person who lost a family member for fear of an emotional fleeting expletive.
Or a talk show might not want to bring in a famous actor or musician in case they make a lewd
comment.14
Advocates of the change state that the regulation of broadcast television has become
pointless in the digital age. One of the primary reasons broadcast regulation was put into place is
because the airwaves are a limited resource, so it was important that the public interest was
served. However, people have near-instantaneous access to whatever they want because of the
Internet, so people say the regulation of broadcast is outdated. Berin Szoka, president of the
technology website TechFreedom.com, said, “They’re just rearranging the deck chairs on the
Titanic. The iceberg of technological change has already struck. The ship of regulation is
sinking. No matter what decision they come to, they’re only delaying the inevitable.”15
The FCC has assured citizens that, as of now, their current regulation policy on indecent
material is in force, but they will base their decision off of the comments they receive from
United States citizens. If the FCC chooses to keep their current regulation in place, broadcast
stations will continue to suffer from the chilling effect. They will not be sure what constitutes
something as indecent, so they will instead choose to not air it.
Changing the indecency regulations by removing the restriction on fleeting expletives
and allowing isolated, non-sexual nudity will remove the chilling effect from broadcast stations.
They will be able to air interviews and material without fear of being fined. The problem could
also be alleviated by rewording the indecency regulation to be less vague. As it is now, it is
difficult to determine whether or not something is indecent, and it has been criticized as being
unconstitutional. In the 2009 case FCC v. Fox Television Studios, the Second Court of Appeals
14
Hiserman, Christopher. “Silencing Fox: The Chilling Effect of the FCC’s Indecent Speech Policy.” Boston College
Law Review 52.6 (2011): 14-26. Print.
15
Zara, Christopher. “FCC May Finally Relax Draconian Bush-Era Indecency Rules, but the Parents Television
Council is Not Happy About It.” International Business Times. N.p., 9 Apr. 2013. Web.
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stated, “… we do not suggest that the FCC could not create a constitutional policy. We hold only
that the FCC’s current policy fails constitutional scrutiny.”16
Depending on the decision the FCC makes, which will be influenced in some part by the
comments sent in from citizens, broadcast regulation could be forever changed. The FCC could
change the regulation set in place by FCC v. Pacifica Foundation almost 40 years ago. Their
decision could forever change the way broadcast television and radio is regulated in the United
States.
16
“United States Court of Appeals for the Second Circuit.” N.p., 13 July 2010. Web.
<http://www.ca2.uscourts.gov/decisions/isysquery/e324584c-b565-4896-b8b3-610715bc0e54/1/doc/06-1760ag_opn2.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/e324584c-b565-4896-b8b3610715bc0e54/1/hilite/>.