Legal Feature


Balancing Liberty: Free Speech v. Indecency



June 27, 2006

By Michael Westermann

On Thursday, June 15, 2006, President Bush signed into law a new FCC regulation that aims to place a significantly higher fine on broadcast television networks that break the government's decency standard on air. With Congress's strong support-- 379-35 vote in the House and a "zero nay" vote in the Senate--this new regulation is targeted at prohibiting instances such as the infamous Janet Jackson "wardrobe malfunction" during the half-time show of the Super Bowl XXXVIII in 2004. The new regulations establish a tenfold increase in penalties, giving the FCC the power to fine a broadcaster up to $325,000 per incident. The new law does not change the current rule that prohibits indecent transmissions between the hours of 6 A.M. and 10 P.M. However, the legislation leaves it up to the FCC to define "indecency" for itself.

The new FCC regulations raise possible First Amendment concerns since the Commission itself can define what is indecent and, thus, excludable for on-air broadcasts. Currently, the FCC defines indecent material as that which "contains patently offensive sexual or excretory material that does not rise to the level of obscenity." Meanwhile, obscenity is that which is of a prurient interest, depicts sexual conduct in a patently offensive way, and lacks serious artistic, scientific, or literary value. While obscenity is not protected by the First Amendment, in Miller v. California (1973), the Supreme Court held that indecent speech is protected by the First Amendment and cannot be banned categorically. However, restrictions limiting indecent transmissions to times of the day when children are not likely to be tuning in have been upheld by courts.

Historically, the Supreme Court has protected the First Amendment guarantee of free speech and decided in favor of broadcasters in television regulation cases. The Court has put an end to several pieces of federal legislation aimed at proscribing indecent broadcasts. In general, the Court has invalidated laws that restrict too much speech. In short, a law that overreaches its "compelling" goal of protecting children from indecent broadcasts will be stricken as overbroad. Protective laws that limit what can be transmitted by open-air broadcasts must be narrowly tailored to protect children without prohibiting otherwise lawful programs.

In United States v. Playboy Entertainment Group, Inc. (2000), the Court struck a provision of the Telecommunications Act of 1996 on First Amendment grounds. The provision required that cable television operators providing channels "primarily dedicated to sexually-oriented transmissions" either fully scramble their broadcasts or limit their broadcasts of sexually-oriented programming to the hours between 10 P.M. and 6 A.M. The key in this case was that the Court used its most exacting scrutiny to review the challenged law. Because the law was a content-based speech restriction, the Court required that the law be the "least restrictive means" to accomplish its goal of protecting children from indecent material. In the end, the Court found that there was a less restrictive means to accomplish this goal--viewers could order "signal blocking" on a house-by-house basis. Therefore, the Court invalidated the challenged provision under the First Amendment.

Additionally, the Supreme Court struck two provisions of the Cable Television Consumer Protection and Competition Act (CTCPCA) of 1992 in Denver Area Educ. Telecoms. Consortium v. FCC (1996). In this case three provisions of the CTCPCA were challenged on First Amendment grounds; two of these provisions were invalidated by the Court. The details of the provisions were very complex. Essentially, they either required or allowed for certain public and private channels to segregate out and block indecent material. The goal of the provisions was to protect minors from the indecent material. Even though the laws were complicated, the reason the Court struck the provisions was simple. The Court held that the provisions were not narrowly tailored to protect children; in other words, they restrained too much speech.

The Court has upheld limitations on the broadcast of indecent speech when the regulations are narrowly tailored to shield children from the indecencies. In FCC v. Pacifica Foundation (1978) the Court upheld an order by the FCC stating that a certain radio station could have been subject to sanction following its broadcast of a George Carlin comedy routine called "Filthy Words." The broadcast occurred at two o'clock in the afternoon when there was a reasonable risk that children were in the listening audience. Even though no sanctions were handed down by the FCC, the Court upheld a declaratory ruling by the Commission stating that indecent material could be prohibited at times when children were likely to be in the audience, even though the broadcast did not amount to obscenity.

For now, the rule remains that the government can ban obscenity categorically, and can prohibit indecency during hours when children are likely to be watching television. Laws that overshoot this goal of protecting minors have consistently been invalidated by the courts. Since the new regulations only hike fines, and do not extend broadcast regulations, they likely align with the current case law. It is unclear what result may come if a challenge to the FCC's definition of "indecent" is brought at some point in the future. Nevertheless, with two new Justices on the Supreme Court, it is equally unclear what the Court may do if these new regulations are challenged.

Michael Westermann is a student at Alabama School of Law and an intern with The Rutherford Institute's 2006 Summer Intern Program.