Indecency in Broadcasting: An Undergraduate's Assessment
by Ben Hoben, College of Business Administration, University of Northern Iowa (Spring, 1996)
On October 30, 1973, a radio station owned by Pacifica Corporation broadcast a 12-minute monologue by
George Carlin in which he used Seven "Dirty" Words repeatedly. A man and his
young son heard the monologue on the radio as they drove along, and the father filed a complaint with the Federal
Communications Commission (FCC). This touched off a debate over broadcasting indecency which is still going on over twenty years later. For example,
Infinity Broadcasting recently resolved over one hundred claims of indecency arising from its Howard Stern
Show by reaching a $1.715 million settlement with the FCC. Howard Stern is a top-rated "shock jock" whose
nationally syndicated daily morning talk show reaches major markets such as New York, Los Angeles, Chicago,
Philadelphia, and Washington D.C. The debate continues with concerns over indecency on the Internet, and it
does not look like it will go away anytime in the near future.
History of Indecency Law
The 1927 Radio Act authorized the FCC to punish any party who "utters any obscene, indecent, or profane language by means of radio communication." On July 3, 1978, the Supreme Court reached a decision in the Pacifica case (98 S.Ct. 3026) by ruling that indecent speech may be restricted. The Court said that the FCC has the right to regulate broadcasting more restrictively than other mediums of expression because of the ease with which children can listen to a broadcast. The Supreme Court made it clear that the Pacifica decision was to be considered narrowly tailored to the facts in the case.
Following the Pacifica decision, broadcasters received little attention from the FCC so long as they
avoided the Seven "Dirty Words" from 6 a.m. to 10 p.m. Then came "shock radio."
In 1987, after a nine-year lull, the FCC handed down decisions finding that three radio stations had aired
indecent broadcasts. On a 10 p.m. program, a Los Angeles station
broadcast excerpts from "Jerker," a graphic play about homosexual sex and AIDS.
After 10 p.m., a student-run Santa Barbara, California station played a "crude" song entitled
"Makin' Bacon." A Philadelphia station broadcast a Howard Stern morning show
which contained explicit sexual material. Prior to these decisions, the FCC had only enforced a ban on
broadcasts that repeatedly used the seven dirty words in the Carlin monologue. These three radio cases led the
FCC to declare its new intention to follow a more "generic" legal standard treating the seven dirty words only as
examples of indecency. The FCC's new generic definition was: "language or material that, in context, depicts or
describes, in terms patently offensive as measured by contemporary community standards for the broadcast
medium, sexual or excretory activities or organs."
The generic approach was challenged for overbreadth by several groups led by Action for Children's Television.
On July 29, 1988, the U.S. Court of Appeals for the District of Columbia Circuit ruled that the FCC's generic
approach was not overbroad (852 F.2d 1332), but the Court struck down the Commission's midnight to 6 a.m.
safe harbor saying the FCC had not adequately justified its new, more restrictive hours.
In October, 1988, after the Action for Children's Television case, Congress and President Reagan responded by
approving the Helms Amendment requiring a twenty-four-hour ban on all indecent broadcasting. In June, 1989, the Supreme Court ruled in the Sable
Communications case (109 S.Ct. 2829) that a complete ban on indecent telephone messages was
unconstitutional.
In 1991, in another Action for Children's Television case (923 F.2d 1504), the U.S. Court of Appeals in D.C.
ruled that the FCC's order implementing the Helms Amendment violated the
First Amendment. The Court ruled that the FCC had to provide a safe harbor
for broadcasting indecent material. Then Congress responded by enacting
the Public Telecommunications Act of 1992 requiring the FCC to adopt regulations providing that indecent
materials may be broadcast only from midnight to 6 a.m. except that public radio and television stations leaving
the air at midnight or before could lawfully broadcast such materials after 10 p.m.
In June, 1995, the District of Columbia Court of Appeals, in yet another Action for
Children's Television case (58 F.3d 654) ruled that the six a.m. to midnight ban on broadcasts of
indecent material did not violate the First
Amendment, but the Court ruled that the FCC's 10 p.m. to 6 a.m. safe harbor for those stations going off the
air at midnight, and the midnight to 6 a.m. safe harbor for the stations broadcasting later than midnight was an
unconstitutional distinction. Therefore, the Court made 10 p.m. to 6 a.m. the safe harbor for all stations. This
case was appealed to the Supreme Court. In January, 1996, the Supreme Court refused to review the 1995 ACT
decision thus apparently putting some closure on the broadcasting safe harbor issue (116 S.Ct. 701).
On February 8, 1996, President Clinton signed the 1996 Communications Decency Act which, among other
things, makes it a crime for on-line computer users to transmit indecent
material over the Internet without restricting access to minors. Thus, despite nearly twenty years of litigation,
Congressional intervention and FCC rules, indecency law remains unsettled. Consider some of the continuing
puzzles.
Definition of Indecency
What one person considers indecent programming is another person's entertainment. Justice Brennan pointed out in his dissenting opinion in the Pacifica case that the country is filled with many different subcultures, each of which has different opinions and beliefs about language. Each subculture has various definitions of indecency. Justice Brennan said the Pacifica opinion would, in effect, prevent a minority from hearing something the majority considers indecent. Howard Stern is an excellent example. Stern has been assessed record fines by the FCC for what the commissioners consider indecent programming. One could make the argument that the ratings of Stern's show prove that he is well within the boundaries of contemporary community standards referred to in the FCC's definition of indecency. Daytime talk shows can have doctors talking about sexual activities, but when Howard Stern talks about them, it is considered indecent. Thus it looks as if Stern's sexual references are considered indecent because they are used as comedy. Whether a comedy or part of a serious discussion, children will be listening during the daytime hours.
Another problem with the generic definition is that broadcasters censor themselves for fear of being fined, which
has the effect of restricting what people hear. Broadcasters have a hard time figuring out what
indecent programming is. Some shy away from perfectly acceptable
material because they do not know if it will get them in trouble. On the other hand, some stations take the view
that the fines are worth the risk because of high ratings from a program such as Howard Stern's.
Safe Harbor
The safe harbor policy has emerged from the Supreme Court's well-settled "content/context" reasoning. With limited exceptions, government cannot restrict what is said (content), but government can impose reasonable restraints on when, where, and how it is said (context). This raises the issue of the implications of channeling indecent programming to the current 10 p.m. to 6 a.m. safe harbor. In effect, does that policy amount to a total ban since most people are sleeping during the bulk of that time? Is it unconstitutional to force adults to limit the information they can hear to a level suitable for children? The courts have ruled that this is the least restrictive means possible and have supported the FCC's policy of channeling. The safe harbor seems to be the only solution other than a complete ban on indecent broadcasting, which is clearly unconstitutional.
Balance of Power
The indecency in broadcasting question demonstrates the importance of the constitutionally-mandated balance of power between the three branches of government. The Helms Amendment calling for a twenty-four hour ban on indecent broadcasting provides a great example of the balance of powers in action. The Helms Amendment was passed by Congress and signed into law by President Reagan. The FCC was then required to enforce the ban which was challenged in court and was struck down. The District of Columbia Court of Appeals, in the 1988 Action case, said that this was definitely not what they had in mind when they said that indecent speech should be regulated by the least restrictive means possible. The Helms dispute illustrates the importance of the three branches balancing each other, but also demonstrates the power of politics in discouraging inter-branch cooperation.
The FCC has the power to make the rules, enforce the rules, and then decide the punishment for violation of the
rules. This raises the question as to whether or not the FCC has too much power. Some argue that the FCC
should not be able to make its own rules. Those critics say that lawmaking should be left to Congress, and the
FCC should be limited to enforcing Congress' will.
Parental Responsibility
Parental responsibility is a very important issue in the indecency debate. The question arises as to how closely we can expect parents to watch over their children. In this era we can no longer assume that one parent will be home during the day to make sure that children are not listening to indecent material. For that reason, among others, the courts permit indecent programming only during the safe harbor.
Internet
The issue of indecency keeps changing every day. Today's headlines regarding indecency are associated with the Internet. The American Civil Liberties Union and others have sued challenging the constitutionality of the 1996 Communications Decency Act. Indecent material abounds on the Internet. The key to the current debate is whether the Internet is more like a newspaper or a television. If it is considered like television, broadcast rules would apply and Internet transmission could be regulated by the FCC. If the Internet were considered more like a newspaper, it would have the same First Amendment rights as newspapers, and the restrictive broadcasting rules would not apply. The question reduces then to whether Internet users are a captive audience. Broadcast rules would apply if the number of channels are limited and the audience does not have control over what they see. If the audience is not "captive", the Internet will be considered more like a newspaper because users have control over what they see.
Opponents say the Decency Act reduces on-line content to a level suitable for children and prohibits discussion
among adults. Opponents also say we have effective software controls that allow parents to restrict access to
indecent material without limiting everybody. The government, on the
other hand, says that restrictions are necessary to shield minors because they can easily obtain indecent material
from the Internet. Thus, the government says computer networks and the Internet should be more strictly
regulated.
[Afterword. In 1997, the United States Supreme Court struck down the "indecency"
and "patently offensive" portions of the Communications Decency Act as unconstitutional
abridgements of adults' freedom of speech.]
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