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Content Regulation: Obscene, Profane, and Indecent Broadcasts

Within the universe of First Amendment protection, broadcast radio and television stations have been subjected to greater regulation than any other verbal, visual, or printed medium of expression. The licensing process by itself gives the federal government more power over the content of television and radio broadcasts than it has over any print medium. Radio and television stations have been required to carry public service messages that they might not otherwise have chosen to carry, and they have been subjected to censure for broadcasting materials that would not have been punishable if they had been published in another medium.

The United States Code prohibits the broadcast of any material that is “obscene, indecent, or profane,” but offers no definition for those terms. Instead, that task is left to the FCC through its rulemaking and adjudicatory functions. Essentially, it is illegal to air obscene programming at any time. To determine what is obscene, the U.S. Supreme Court crafted a three-prong test:

  • An average person, applying contemporary community standards, would find that the material, as a whole, appeals to the prurient interest
  • The material depicts or describes, in a patently offensive way, sexual conduct specifically defined by applicable law
  • The material, taken as a whole, lacks serious literary, artistic, political, or scientific value

Federal law also prohibits the broadcast of indecent programming or profane language during certain hours. According to the FCC, indecent programming involves patently offensive sexual or excretory material that does not rise to the level of obscenity. Indecent material cannot be barred entirely, because it is protected by the First Amendment. The FCC has promulgated a rule that bans indecent broadcasts between the hours of 6:00 a.m. and 10:00 p.m. The FCC defines profanity as “including language so grossly offensive to members of the public who actually hear it as to amount to a nuisance”. Profanity is also barred from broadcast between 6:00 a.m. and 10:00 p.m.

In 1978 in FCC v. Pacifica Foundation, the U. S. Supreme Court upheld an FCC order finding that a pre-recorded satirical monologue constituted indecent speech with the repeated use of seven “dirty words” during an afternoon broadcast. The Supreme Court acknowledged that the monologue was not obscene and thus could not have been regulated had it been published in print. But the Court distinguished broadcast media from print media, pointing out that radio and television stations are uniquely pervasive in Americans’ lives, and are easily accessible by impressionable children who can be inadvertently exposed to offensive materials without adult supervision. Print media, the Court said, do not intrude upon Americans’ privacy to the same extent or in the same manner. Thus, the Court concluded that the FCC could regulate indecent speech on radio and television but cautioned that the commission must do so in a manner that does not completely extinguish such speech.

When a station airs obscene, indecent, or profane material, the FCC may revoke the station’s license, impose a monetary forfeiture, or issue a warning. One of the highest profile cases in the last few years came after a half-time performance with Janet Jackson and Justin Timberlake at the 2004 Super Bowl. In August 2004, the FCC ordered CBS Broadcasting to pay $550,000 for its broadcast of indecent material. The FCC issued $7.9 million in indecency fines in 2004.

The FCC undertakes investigations into alleged obscene, profane, and indecent material after receiving public complaint. The FCC reviews each complaint to determine whether it appears that a violation may have occurred. If so, the FCC will begin an investigation. The context of the broadcast is the key to determine whether a broadcast was indecent or profane. The FCC analyzes what was aired, the meaning of it, and the context in which it aired. Complaints can be made online, via e-mail or regular mail, or by calling 1-888-CALL-FCC (voice) or 1-888-TELLFCC (TTY).

As cable television gained prominence during the 1980s, it became unclear whether the FCC’s rules on indecency and profanity applied to this burgeoning medium. Cable operators do not use broadcast spectrum frequencies, but they are licensed by local communities in the same way broadcast television station operators are licensed by the FCC. Moreover, cable operators partake in the same kind of First Amendment activities as do their broadcast television counterparts.

Congress tried to clarify the responsibilities of cable operators when it passed the Cable Television Consumer Protection and Competition Act of 1992 (CTCPCA). CTCPCA authorized cable channel operators to restrict or block indecent programming. The authorization applied to leased access channels, which federal law requires cable systems to reserve for lease by unaffiliated parties, and public access channels, which include educational, governmental, or local channels that federal law requires cable operators to carry. Cable operators claimed that the statute was fully consistent with the First Amendment because it left judgments about the suitability of programming to the editorial discretion of the operators themselves. But cable television viewers filed a lawsuit arguing that the statute violated the First Amendment by giving cable operators absolute power to determine programming content.

In 1996 the case was appealed to the U. S. Supreme Court, which issued an opinion that was as badly divided as the litigants. In handing down its 5-4 decision in Denver Area Educational Telecommunications Consortium, Inc. v. F.C.C, the Court first noted that cable television shares the same characteristics of broadcast television that were discussed in the Pacifica case, namely that it is uniquely pervasive, is capable of invading the privacy of viewers’ homes, and is easily accessible by children. Despite the similarities, the Court held that CTCPCA had violated the First Amendment by giving cable operators the power to prohibit patently offensive or indecent programming transmitted over public access channels. The court reasoned that locally accountable bodies comprised of community members are better capable of addressing programming concerns, and thus creating a “cable operator’s veto” was not the least restrictive means of addressing the appropriateness and suitability of cable television programming.

With respect to leased access channels, the Court ruled that CTCPCA also violated the First Amendment by requiring cable system operators to segregate patently offensive programming on separate channels and then requiring the operators to block those channels from viewer access until individual cable subscribers requested access in writing. The Court said that these requirements had an obvious speech-restrictive effect on viewers and were not narrowly or reasonably tailored to protect children from exposure to indecent materials. The Court cited the V-chip, as one less restrictive means of accomplishing the same objective.

Inside Content Regulation: Obscene, Profane, and Indecent Broadcasts