Indecency regulation: beyond broadcast?

Wednesday, December 5, 2007

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

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,
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
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.
(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

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
— the most rigorous form of judicial review — to invalidate the
federal law.

In Reno
(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

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

“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

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.

Continuing controversy, technological answers and the future
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

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

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
(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

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