6.3 Obscenity and indecency in broadcasting

Broadcasting regulations on obscenity and indecency aim to protect viewers, especially kids, from offensive content. The FCC can restrict indecent material on TV and radio during certain hours, but not on cable or the internet.

Courts have upheld the FCC's authority to regulate broadcast indecency, citing its pervasiveness. However, evolving technology and social norms are challenging traditional regulatory approaches, sparking debates about free speech and content control.

Obscenity and Indecency in Broadcasting

Legal Definitions and Standards

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• Obscenity is not protected by the First Amendment and is defined by the Miller test, which requires that the material:
  1. Appeals to the prurient interest
  2. Depicts sexual conduct in a patently offensive way
  3. Lacks serious literary, artistic, political, or scientific value
• Indecency is defined by the FCC as language or material that, in context, depicts or describes sexual or excretory organs or activities in terms patently offensive as measured by contemporary community standards for the broadcast medium (George Carlin's "seven dirty words" monologue)
• The FCC has the authority to regulate indecent content on broadcast television and radio, but not on cable, satellite, or the internet
• Indecent content is restricted to late night hours between 10 p.m. and 6 a.m. to minimize children's exposure

Profanity and Contextual Considerations

• Profanity, while not specifically defined by the FCC, includes language so grossly offensive to members of the public who actually hear it as to amount to a nuisance (racial slurs, graphic descriptions of sexual acts)
• The context in which potentially indecent or profane material is presented is crucial in determining its regulatory treatment, considering factors such as:
  • The explicitness or graphic nature of the description
  • Whether the material dwells on or repeats the offensive content at length
  • Whether the material appears to pander, titillate, or is presented for shock value

Evolution of Obscenity and Indecency Regulation

Landmark Supreme Court Decisions

• In FCC v. Pacifica Foundation (1978), the Supreme Court upheld the FCC's authority to regulate indecent content in broadcasting, citing:
  • The uniquely pervasive presence of the broadcast media
  • Its accessibility to children
  • The case involved George Carlin's "Filthy Words" monologue aired on radio
• In Reno v. ACLU (1997), the Supreme Court struck down portions of the Communications Decency Act that attempted to regulate indecent content on the internet, distinguishing it from broadcasting due to:
  • The internet's lack of invasiveness
  • The availability of user-controlled filtering software

FCC Policy Developments

• The FCC's indecency policy was clarified in 1987 to prohibit indecent material between 6 a.m. and 10 p.m., with a safe harbor for such content between 10 p.m. and 6 a.m.
• The FCC's 2001 Industry Guidance on the Commission's Case Law Interpreting 18 U.S.C. § 1464 and Enforcement Policies Regarding Broadcast Indecency:
  • Provided examples of indecent content (explicit references to sexual activities, graphic descriptions of sexual organs)
  • Emphasized the importance of context in determining indecency
• In FCC v. Fox Television Stations (2012), the Supreme Court invalidated the FCC's indecency policy as unconstitutionally vague, leading to a decrease in indecency enforcement actions by the FCC (fleeting expletives, brief nudity)

Free Speech vs Content Regulation

Balancing Competing Interests

• The regulation of obscenity and indecency in broadcasting involves a tension between:
  • The First Amendment right to free speech
  • The government's interest in protecting the public, particularly children, from offensive content
• The unique characteristics of broadcasting, such as its pervasiveness and accessibility to children, have been cited as justifications for increased regulation compared to other media platforms (cable, satellite, internet)

Criticisms and Concerns

• Critics argue that the FCC's indecency regulations are:
  • Subjective and inconsistently enforced
  • Have a chilling effect on free speech, leading broadcasters to self-censor content to avoid potential fines or license revocation
• Technological advancements, such as the V-chip and content ratings systems, have provided viewers with tools to control access to offensive content, potentially reducing the need for government regulation

Evolving Media Landscape

• The rise of alternative media platforms, such as cable, satellite, and the internet, has diminished the rationale for singling out broadcast media for heightened regulation of indecent content
• The increasing fragmentation of media audiences and the availability of niche content has made it more difficult to apply a uniform standard of indecency across all platforms

Social Norms and Technology vs Obscenity Regulation

Shifting Cultural Attitudes

• Changing social norms and attitudes towards sexuality, language, and offensive content have led to shifts in what is considered indecent or obscene over time, complicating the consistent application of regulatory standards
• The increasing acceptance of diverse viewpoints and the erosion of traditional moral consensus have made it more challenging to define and enforce a universal standard of indecency (LGBTQ+ content, political satire)

Technological Disruption

• The proliferation of alternative media platforms, such as cable, satellite, and the internet, has made it easier for audiences to access a wide range of content, including material that may be considered indecent or obscene, reducing the effectiveness of broadcast-specific regulations
• The increasing use of time-shifting technologies, such as DVRs and on-demand streaming, has blurred the distinction between the safe harbor hours and prime time, making it more difficult to restrict children's access to indecent content (Netflix, Hulu, YouTube)

Globalization and User-Generated Content

• The globalization of media content has raised questions about the applicability of local community standards in determining indecency, as content produced in one region may be easily accessible in another with different cultural norms
• The rise of user-generated content on social media and video-sharing platforms has created new challenges for regulating obscenity and indecency, as the volume of content and the decentralized nature of its production make it difficult for traditional regulatory approaches to keep pace (TikTok, Instagram, Twitter)