Indecent Proposals: Why Most Recent FCC Indecency Crackdown Risks Crossing Center Line into Oncoming First Amendment Showdown

By Robert Corn-Revere and Ronald G. London
[Fall 2004]

On Sept. 22, 2004 the Federal Communications Commission (FCC) announced it was fining the CBS Network $550,000 for Janet Jackson’s infamous “wardrobe malfunction” that concluded the halftime show of the 2004 Super Bowl. The fine did not set a record under the FCC’s rules against broadcast “indecency,” but it sent a clear message that the Commission is mad as Hell and is not going to take it any more. As this issue of the First Amendment Law Letter goes to press, members of Congress continue to explore ways to enact legislation that would empower the FCC to multiply the magnitude of such fines by ten or even nearly twenty times.

Although the halftime show may have been the breast-shot seen ‘round the world, it was not the beginning of the current legal revolution governing broadcast indecency. The broadcast indecency contretemps started months earlier with the FCC’s Enforcement Bureau decision that U2 lead-singer Bono’s spontaneous remark “this is really, really fucking brilliant” while accepting a Golden Globes Award on live TV did not constitute actionable indecency.¹ The decision attracted the attention of Capitol Hill and was headed for reversal by the Commission when Congress convened the first congressional oversight hearings. Because the now-famed “wardrobe malfunction” occurred days after the initial hearing, it eclipsed the previous controversies. L’affair Super Bowl galvanized momentum for newly restrictive and constitutionally-suspect FCC indecency rules, an indecency enforcement crackdown startling in its breadth and heavy-handedness, and new legislation to vastly increase indecency fines.

Even before any new legislation was enacted, however, the FCC proposed massive fines for broadcast indecency, culminating in a record $1.75 million settlement with Clear Channel. They included:

• a $755,000 maximum fine for bits on the syndicated “Bubba the Love Sponge” show;
  
  
• a $495,000 maximum fine against six Clear Channel stations for airing the Howard Stern Show;
  
  
• maximum fines of $357,000 and $247,000 to two licensees for sexual banter; and
  
  
• a maximum $55,000 penalty for a radio broadcast that described a sex act in “colloquial terms” and “innuendo” rather than as direct references.

The FCC also imposed a maximum $27,500 fine against a TV station for a live news interview with the cast of the stage production “Puppetry of the Penis” because of the accidental, brief “overexposure” of one of its members. FCC Chairman Michael K. Powell told Congress the indecency fines represented “the most aggressive enforcement regime in decades,” and he pledged to further sharpen the agency’s “enforcement blade.”

Background to current crackdown

The FCC regulates indecent broadcasts pursuant to 18 U.S.C. § 1464, which prohibits the transmission of “obscene, indecent or profane language by means of radio communication.” The FCC defines indecency as “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.”² The Supreme Court narrowly upheld this standard in the famous George Carlin “Seven Dirty Words” case, FCC v. Pacifica Foundation, 438 U.S. 726 (1978). Although the 5-4 decision upheld the FCC’s authority to regulate broadcast content, it emphasized that the Commission’s power is limited. Justice Powell, who supplied a crucial swing vote for Pacifica’s slim majority, stressed that the FCC does not have “unrestricted license to decide what speech, protected in other media, may be banned from the airwaves.” Pacifica, 438 U.S. at 760-761 (Powell, J., joined by Blackmun, J., concurring). Justice Powell was willing to allow the FCC some control because he believed the FCC would “proceed cautiously,” and he instructed the FCC to consider the chilling effect on speech “as it develop[s] standards” in this area. Id. at 760, 762.

Lower court decisions that subsequently upheld the basic indecency standard similarly counseled agency caution. In Action for Children’s Television v. FCC, 852 F.2d 1332 (D.C. Cir. 1988) (“ACT I”), the D.C. Circuit considered FCC implementation of a generic indecency definition in a series of rulings in which the FCC held that broadcasts that would not have violated Pacifica’s “filthy words” standard nevertheless were indecent.³ The court rejected vagueness and overbreadth challenges to the generic definition but vacated the FCC’s rulings that found post-10:00 p.m. broadcasts indecent, holding that a “reasonable safe harbor rule” was constitutionally mandated and the FCC’s findings in that regard were “more ritual than real” and its underlying evidence “insubstantial.” Id. at 1341-42. The court directed the FCC to be “sensitive to” the facts that “the speech at issue ... is protected by the first amendment” and that the agency’s “avowed objective is not to establish itself as censor but to assist parents in controlling the material young children will hear.” Id. at 1334. The court also reiterated that “[i]ndecent but not obscene material ... qualifies for first amendment protection whether or not it has serious merit.” Id. at 1340. It allowed the Commission some latitude to regulate in this constitutionally protected area, noting it did so with the expectation that any “potential chilling effect of the FCC’s generic definition ... will be tempered by [its] restrained enforcement policy.” Id. at 1340 n.14.

The Golden Globes Bureau Decision seemed to keep these admonitions in mind. The FCC staff applied well-established FCC precedent and held that the NBC-affiliate broadcast licensees that aired the awards show did not violate the law because, with such live, unscripted events, “fleeting and isolated remarks of this nature do not warrant” sanctions.⁴ The decision is consistent with language in Pacifica stating it would be “inequitable” to “hold a licensee responsible for indecent language” when “public events likely to produce offensive speech are covered live, and there is no opportunity” for editing. 438 U.S. at 733 n.7. The Bureau decision, and its refusal to impose a fine or any other sanction, was consistent with Justice Powell’s understanding that Pacifica did not approve sanctions against “the isolated use of a potentially offensive word.” 438 U.S. at 760-761 (Powell, J., concurring); see also Id. at 772 (Brennan, J., dissenting).

In an unfortunate part of the decision—that attracted the most attention—the staff also reasoned that “the material aired ... does not describe or depict sexual and excretory activities and organs,” as required by the indecency definition, but rather simply included an “adjective or expletive to emphasize an exclamation.” Golden Globes Bureau Decision, 18 FCC Rcd. at 19861-62.

The decision was adopted with little fanfare but was soon the center of a political firestorm. Those outraged with the decision demanded to know how this alleged dirtiest of dirty words could not be indecent. Leading the charge was the Parents Television Council (PTC), a self-appointed watchdog of broadcast content that had mobilized its members to bombard the FCC with email complaints about the broadcast. The PTC filed an application for full Commission review seeking to have the Bureau’s decision reversed.

While that request was pending, and before the year was out, both the Senate and the House of Representatives had issued resolutions calling the FCC to task. The Senate urged the FCC to reconsider the Bureau’s decision and to “return to vigorously and expeditiously enforcing” the indecency standard, to “reassert its responsibility as defender of the public interest” against “degrading influences of indecent programming,” and to “use all ... available authority” including “fines ... for each separate ‘utterance’ or ‘material’ [and] license revocation proceedings for repeated violations.” S. Res. 283, Dec. 9, 2003. The Senate resolution came one day after the House protested “the lowering of standards [and] weakening of the rules of the [FCC] prohibiting obscene and indecent broadcasts.” H. Res. 482, Dec. 8, 2003. At the same time, the “Clean Airwaves Act” was introduced to amend Section 1464 to specify “words and phrases ... and other grammatical forms of such words and phrases (including verb, adjective, gerund, participle, and infinitive forms)” that constitute “profanity” under the statute.⁵

Legislative and regulatory hand-wringing continued into the new year, including adoption of another House resolution largely mirroring Senate Resolution 283. H. Res. 500, Jan. 21, 2004. Meanwhile, FCC Chairman Michael K. Powell openly lobbied fellow Commissioners to reverse the Golden Globes Bureau Decision. At the same time, he called on Congress to raise the maximum fine the FCC can impose against licensees airing indecent programming “by at least tenfold” from its then present level of $27,500 per offense. His entreaties soon were answered. The Chairman of the House Committee on Energy and Commerce’s Subcommittee on Telecommunications and the Internet introduced legislation to increase the fines from $27,500 for each indecent broadcast (with a maximum of $300,000 for continuing violations) to $275,000 per incident (with a $3 million cap). The Subcommittee also held a hearing on Jan. 28, 2004, to examine FCC indecency enforcement. In addition, the Senate started its own inquiry by scheduling a hearing to be held Feb. 11, 2004.

Not coincidentally, the FCC stepped up its indecency enforcement by proposing, the day before the House hearing, fines against two radio stations for airing sexually oriented bits involving, respectively, New York’s St. Patrick’s Cathedral and a D.C. Catholic school, and a third fine against a TV station for a news story on the Australian show “Puppetry of the Penis,” which included an inadvertent glimpse of the title character.⁶ Little did the FCC know, however, how soon it would have an opportunity to flex its indecency muscles. Just days after the House hearing, stakes were raised considerably by the now-infamous 2004 Super Bowl halftime show.

Did the FCC overreact to Janet Jackson’s “wardrobe malfunction?” Consider the following: It took 11 days after the “day of infamy” for President Franklin D. Roosevelt to convene the Roberts Commission to investigate the attack on Pearl Harbor, and it took one year and 77 days after Sept. 11, 2001 before President George W. Bush authorized the National Commission on Terrorist Attacks Upon the United States. But it took the FCC less than 24 hours to issue a letter of inquiry demanding a full investigation of the Super Bowl halftime performance.

Some thought this was over-the-top. At least one poll indicated that nearly 80 percent of respondents believed the investigation was a waste of tax dollars.⁷ Nevertheless, congressional activity rapidly took on new urgency. The House quickly scheduled another indecency hearing on Feb. 11, 2004, moving so aggressively that schedules for the two chambers’ inquiries had to be coordinated to facilitate the appearances of common witnesses. Proposals began making their way through Congress to increase FCC authority over indecent broadcasts. Bills proposing to increase maximum FCC indecency fines to up to $500,000 per utterance joined the existing proposal for a tenfold increase and the new list of “off limits” dirty words.⁸

The flurry of activity in Congress soon culminated in legislative and regulatory action. On March 11, the House passed H.R. 3717, the Broadcast Decency Enforcement Act of 2004. The bill calls for increased fines of $500,000 per incident for obscene, indecent or profane broadcasts. It also specifies criteria for the FCC to consider in setting the amount of fine, including whether the offending material was live or recorded and/or scripted or unscripted; whether there was an opportunity to review recorded or scripted programming or a reasonable basis to believe live or unscripted programming might contain offending material; whether a delay was utilized for live or unscripted programming; the size of the audience; and whether the material was part of a children’s program. The bill also would relieve network affiliates of liability for network programming they lack the ability to preview or if it is live or unscripted and there was no reason to believe it would contain offending material. On the other hand, it would allow FCC fines against non-licensees (i.e., performers) if they willfully or intentionally “utter” an indecency.

Though indecency legislation temporarily stalled in the Senate, that chamber eventually passed the Broadcast Decency Enforcement Act of 2004, S.A.3235, as an amendment to the National Defense Authorization Act for Fiscal Year 2005, 5.2400. However, the House and Senate ultimately could not reconcile the bills and the legislation was dropped on Oct. 8, 2004.

FCC vastly changes indecency legal environment

As Congress debated changes in the law, the FCC effected a sea change on March 18 when it reversed the Golden Globes Bureau Decision and held Bono’s exclamation indecent and profane. That same day, the Commission issued three other decisions adopting or applying new indecency rules.⁹ The full Commission rejected the Bureau analysis of Bono’s use of the word “fucking,” finding that “within the scope of our indecency definition ... it does depict or describe sexual activities.” Golden Globes Order ¶ 8. It then found the material otherwise satisfied the indecency definition in that it was patently offensive under contemporary community standards for the broadcast medium, Id. ¶ 9, and it adopted a new de facto rule that “any use of [the] word [‘fuck’] or a variation, in any context, inherently has a sexual connotation and therefore falls within the ... indecency definition.” Id. ¶ 8.

In addition, the FCC held that prior decisions “that isolated or fleeting broadcasts of the ‘F-Word’ ... are not indecent or would not be acted upon” are “no longer good law,” Id. ¶ 12, and it adopted what is essentially a requirement that broadcasters use technological measures such as delays to avoid airing a single or gratuitous use of a vulgarity. Id. ¶ 11. The FCC also found “an independent ground” that the material violated Section 1464 as being “‘profane’ language,” Id. ¶ 13, and it put broadcasters “on notice” that it “will not limit its definition of profane speech to only those words and phrases that contain an element of blasphemy or divine imprecation.” Id. ¶ 14. Rather, the FCC announced that hereafter it “will also consider under the definition of ‘profanity’ the ‘F-Word’ and those words ... that are [likewise] highly offensive.” Id.

The FCC also took the “opportunity to reiterate ... that serious multiple violations of [the] indecency rule ... may well lead to ... license revocation proceedings” and that fines could issue “for each indecent utterance in a particular broadcast.” Id. ¶ 17. However, notwithstanding a finding that the broadcast of Bono’s expletive was indecent and profane, the FCC did not fine the licensees that aired the offending material. Id. ¶ 15. By a 3-2 vote, it found such action would be inappropriate because precedent at the time of the broadcast would have permitted airing the material, and the Golden Globes Order was “a new approach to profanity,” such that the licensees “lacked the requisite notice to justify a penalty.” Id.

The FCC reinforced and/or built upon the new Golden Globes Order rules in the concurrently issued Infinity Radio, Infinity Broadcasting and Capstar actions, as well as in other actions issued shortly thereafter.¹⁰ The Commission’s new approach included deeming colloquialisms or innuendo actionable whenever the FCC finds there is an “unmistakable” sexual connotation,¹¹ holding that the indecency of a broadcast can turn on the “identities of the participants,”¹² restricting the extent to which broadcasters can look to prior agency statements defining indecency for guidance,¹³ and stating an intent to pursue sanctions even in the absence of complaints.”¹⁴

Reaction to the FCC’s sharp change in direction on indecency regulation was virtually instantaneous, and eminently foreseeable. Broadcasters immediately began eliminating or curtailing live programming. They also fired on-air personnel. Examples included not only Clear Channel’s termination of Howard Stern’s show on its six stations (that had drawn a $495,000 fine), but also some personalities that merely aired a single offending word inadvertently. Radio stations also began removing or editing numerous songs, including quite a few that had aired for years without complaint. Networks canceled or altered edgy television shows even though audiences had long been on notice as to their content and/or tone, and some even were previously found not indecent. For example, public broadcasters were compelled to edit out a hint of cleavage in the American Experience documentary “Emma Goldman.” In “Every Child is Born a Poet: The Life and Work of Piri Thomas,” a program featuring readings and dramatizations of the work of this renowned poet, writer and educator, PBS cut out several expletives (including nonsexual epithets) though they appeared in the original works. Citing this substantial chilling effect, a coalition of two dozen licensees, public interest organizations, professional associations, production entities, programmers, writers and performers sought reconsideration of the Golden Globes Order, asking the FCC to seriously consider whether “the system of government regulation” it has newly adopted is “fundamentally incompatible with the First Amendment.”

Golden Globes Order focuses attention on constitutional problems of FCC indecency scheme

The Golden Globes Order raises a host of constitutional questions notwithstanding the Supreme Court’s decision in Pacifica a quarter century ago. Even before the Golden Globes Order, the FCC’s Section 1464 enforcement regime was fraught with constitutional difficulties, and the new indecency and profanity standards, more zealous enforcement, higher fines, and other recent policy changes focus attention on the need for wholesale First Amendment review. In this regard, the government has a constitutional obligation to address significant First Amendment issues when it modifies or reaffirms any regulation of broadcast content. See Meredith Corp. v. FCC, 809 F.2d 863, 874 (D.C. Cir. 1987).

Any such reexamination must acknowledge that the Supreme Court’s 5-4 ruling did not give the FCC carte blanche to decide what broadcasts are indecent or to impose unlimited penalties. The ability to regulate so-called “indecent” speech is a limited constitutional exception, not the rule. The Supreme Court has invalidated indecency restrictions imposed on print media, film, the mails, cable television, and the Internet,¹⁵ and in doing so confirmed that indecent speech is fully protected and not subject to lesser First Amendment scrutiny as “low value” speech. Playboy, 529 U.S. at 826. It has acknowledged the FCC’s definition of indecency was not endorsed by a majority of Justices and repeatedly described Pacifica as “emphatically narrow.”¹⁶ Lower courts have not analyzed or reaffirmed Pacifica, but instead simply recited and applied its outcome.¹⁷

Both broadcasting and the media environment in which it operates change over time, and with it so, too, must regulatory standards that bear on broadcast programming. As the Court observed in CBS v. Democratic Nat’l Comm., 412 U.S. 94, 102 (1973), “problems of regulation are rendered more difficult because the broadcast industry is dynamic in terms of technological change; solutions adequate a decade ago are not necessarily so now, and those acceptable today may well be outmoded 10 years hence.” In the 26 years since Pacifica and the nine years since the D.C. Circuit last considered broadcast indecency, it has become less tenable to assume that broadcasting may be subjected to special rules because it is a “uniquely pervasive presence.” Pacifica, 438 U.S. at 748. During this interval the FCC has found that traditional media “have greatly evolved,” and “new modes ... have transformed the landscape, providing ... more control than at any other time in history.”¹⁸ Notably, Reno v. ACLU subjected the indecency definition (in the Internet context) to rigorous scrutiny for the first time and found it seriously deficient. 521 U.S. at 871-881. It has not helped that while legal standards and the media environment have been evolving the FCC has shown a marked inability to clarify, solidify, and/or apply its own standard.¹⁹

From the outset, the regulation of indecent speech has presented a paradox. Courts confirm that “indecent” speech is fully protected by the Constitution, yet the amorphous FCC standard provides little protection as a practical matter.

Meanwhile, “obscenity” that purportedly is unprotected is subject to First Amendment doctrine that provides more actual legal protection. The test for obscenity, adopted in Miller v. California, 413 U.S. 15 (1973), permits restriction only of works that, taken as a whole, are deemed by the average person applying contemporary community standards to appeal to the prurient interest; that depict or describe in patently offensive ways sexual conduct specifically defined by applicable state law; and that taken as a whole lack serious literary, artistic, political, or scientific value. Meanwhile, the indecency standard bars transmission (at times of day when children are likely in the audience) of language or material that, in context, depicts or describes, in terms patently offensive under contemporary community standards for the broadcast medium, sexual or excretory activities or organs. Unlike the test for obscenity, the FCC’s standard applies to select passages not whole works, is based not on average persons in a community but on children, and literary or artistic merit do not bar liability.

The Supreme Court has held that the Miller test “critically limits the uncertain sweep of the obscenity definition.” Reno, 521 U.S. at 872-873. By sharp contrast, the focus of the FCC’s indecency enforcement on select passages and not works as a whole is alone a significant constitutional defect. This problem with the indecency standard merely scratches the surface of its constitutional shortcomings, as it does not even begin to consider the extent to which the standard does not evaluate the effect of material on the average person but rather on the most vulnerable members of the community (children), and the extent to which it likely restricts material that has serious literary, artistic, political or scientific value. Because the test is far less rigorous, the Supreme Court found the indecency standard as applied to the Internet “unquestionably silences some speakers whose messages [are] entitled to constitutional protection,” and the requirement that isolated passages be considered “in context” is no cure. Id. at 871, 873. Since Reno, virtually every court ruling on laws that depend on the indecency standard has found them unconstitutional.²⁰

The FCC’s historical enforcement of its indecency standard also has lacked strict procedural safeguards that govern any administrative processes that effectively deny or delay the dissemination of speech, see, e.g., Freedman v. Maryland, 380 U.S. 51, 58-61 (1965), and that are required by a constitutional mandate for the government to use “sensitive tools” to “separate legitimate from illegitimate speech.” Speiser v. Randall, 357 U.S. 513, 525 (1958). The FCC’s regime of enforcing indecency is inconsistent with the basic First Amendment principles that any delay in rendering a decision on the permissibility of speech be minimal, that speakers receive prompt judicial review, United States v. Thirty-Seven Photographs, 402 U.S. 363, 367-368 (1971), and that in every case where the government seeks to limit speech a constitutional presumption runs against it and requires the government to justify the restriction. Playboy, 529 U.S. at 816; Interactive Digital Software Ass’n v. St. Louis County, 329 F.3d 954, 959 (8th Cir. 2003).

With respect to judicial review in particular, the process is anything but prompt even after the FCC finds a particular broadcast indecent. Licensees challenging such findings generally must either agree to pay the fine and appeal, or refuse to pay and endure enforcement proceedings (assuming the government initiates collection action) before raising a defense in court. See, e.g., AT&T Corp. v. FCC, 323 F.3d 1081, 1085 (D.C. Cir. 2003). But since the FCC in the interim may withhold action on other matters the licensee has pending before it, no licensee has been able to hold out long enough to test the validity of an FCC indecency ruling. See Action for Children’s Television v. FCC, 59 F.3d 1249, 1254 (D.C. Cir. 1995) (“ACT IV”). Under this system, Clear Channel recently paid $1.75 million, the largest “voluntary payment” ever negotiated between the FCC and a broadcaster to settle indecency charges. Clear Channel Communications, Inc., FCC 04-128, (June 9, 2004). The payment was in addition to a $755,000 forfeiture Clear Channel paid in February for a broadcast not covered by the settlement.

The fact that there are no court decisions interpreting or applying the indecency standard in particular cases compounds the problem, as licensees must look to the FCC for clarity, but its decisions provide scant guidance. First, most such decisions are unpublished, informal letter rulings stored in individual complaint files at the FCC and thus are unavailable, especially those declining to take action.²¹ Second, even where the FCC reaches the merits of a complaint, its decision typically consists of conclusory statements finding the broadcast indecent. The FCC’s one attempt to address this problem, the aforementioned Industry Guidance adopted pursuant to the Evergreen Media settlement, see supra notes 2, 19, was little help. The FCC pointed out that “contextual determinations” critical to indecency analyses “are necessarily highly fact-specific, making it difficult to catalog comprehensively all of the possible contextual factors that might exacerbate or mitigate the patent offensiveness of particular material.” Industry Guidance, 16 FCC Rcd. at 8002-03. And though the FCC stated in the past that, if individual rulings fail to “remove uncertainty” in this “complicated area of law,” it may use its power to issue declaratory rulings to clarify the standard, New Indecency Enforcement Standards, 2 FCC Rcd. at 2727, the FCC in practice has never granted such a request. See Infinity Broad. Operations, Inc., 18 FCC Rcd. 26360 116 n.14 (2003).

FCC’s new approach has significant First Amendment flaws

The Golden Globes Order brings long-simmering problems underlying the indecency standard to the fore by taking the FCC well beyond established precedent and ultimately raising questions about Pacifica’s continuing validity. Pacifica upheld the FCC’s narrow authority to regulate indecent broadcasting only to the extent it exercised “caution” and “restraint,” see, e.g., 438 U.S. at 756, 760-761 (Powell, J., concurring); ACT I, 852 F.2d at 1340 n.14, and since then courts have raised significant questions about the government’s limited authority in this sensitive area. By overruling precedent that isolated or fleeting uses of “indecent” words are not actionable, and undermining the importance of “context” in indecency analysis, the Golden Globes Order eliminated interpretive restraints long relied upon to help ensure constitutional enforcement of Section 1464.

Despite a purported attempt to clarify matters by decreeing that “any use of [the ‘F Word’] or a variation, in any context, inherently has a sexual connotation,” Golden Globes Order ¶ 8, the FCC only muddied the waters. It warned broadcasters that it intends to interpret broadly the ban on “vulgar and coarse language” including “words (or variants thereof) that are as highly offensive as what it repeatedly referred to as the ‘F-Word.’” Golden Globes Order ¶¶ 13-14. Whether a word may be deemed “highly offensive” depends on “contemporary community standards” for the broadcast medium, yet the FCC has never previously defined that standard other than to say it is national and reflects the “average broadcast viewer or listener,” whoever that may be. The FCC recently claimed it has “experience and knowledge, developed through constant interaction with lawmakers, courts, broadcasters, public interest groups and ordinary citizens, to keep abreast of contemporary community standards.” Infinity Radio ¶ 12. Contrary to this assertion, however, there has been no such “interaction” and the last time a court ruled in this area was nearly a decade ago, at the behest of broadcasters, not the FCC. See ACT IV, 59 F.3d 1249. Worse, the FCC discounts objective means of ascertaining contemporary community standards such as polling or ratings, see Infinity Broad. Operations, 17 FCC Rcd. 27711, 27715 (Enf. Bur. 2002), though recent surveys reveal far different attitudes within the broadcast audience than the FCC presumes. See Kavla McCabe, Study Reveals Rock Listeners’ Views on Indecency, RADIO & RECORDS, Apr. 9, 2004 at 1; Rated R for Rock, RADIO & RECORDS, Apr. 9, 2004 at 15.

The FCC’s new holding that certain expletives can be “profane” further undermines the constitutionality of its rules. It replaces one already-vague rule with several vague standards applying to words or images that may include blasphemy or divine imprecation, “personally reviling epithets naturally tending to provoke violent resentment,” “language so grossly offensive” that it “amount[s] to a nuisance,” and “vulgar, irreverent, or coarse” words. Notably, the religious-based category “blasphemy” and “divine imprecation,” render such phrases as “go to hell” or “god damn it” actionable, see Duncan v. United States, 48 F.2d 128, 134 (9th Cir. 1931), and thereby violate the First Amendment’s Establishment Clause. The “nuisance” and “personally reviling epithet” prongs also raise significant First Amendment problems under well-established precedent.²²

Conclusion

It has been over a quarter of a century since the Supreme Court has reviewed the constitutionality of the broadcast indecency standard. During that period, there have been vast changes in the media landscape that shatter the assumption on which Pacifica was based, that broadcasting has a “uniquely pervasive presence in society.” 438 U.S. at 748. At the same time, other decisions invalidating the indecency standard when applied to other media raise fundamental questions about Pacifica’s continuing validity. The current crusade against broadcast indecency by Congress and the FCC may lead to a long overdue reassessment of the government’s power in this area.

END NOTES

1 Complaints About Various Licensees Regarding Their Airing of the “Golden Globes Awards” Program, 18 FCC Rcd. 19859 (Enf. Bur. 2003) (“Golden Globes Bureau Decision”).

2 See Industry Guidance on the Commission’s Case Law Interpreting 18 U.S.C. § 1464 and Enforcement Policies Regarding Broadcast Indecency, 16 FCC Rcd. 7999, 8000 (2001) (“Industry Guidance”).

3 Id. at 1334 (citing Pacifica Found., 2 FCC Rcd 2698 (1987); The Regents of the Univ. of Cal., 2 FCC Rcd 2703 (1987); Infinity Broad. Corp. of Pa., 2 FCC Rcd 2705 (1987)).

4 18 FCC Rcd. at 19861 (citing Entercom Buffalo License LLC (WGR(AM)), 17 FCC Rcd. 11997 (Enf. Bur. 2002); L.M. Communications of S.C., Inc. (WYBB(FM)), 7 FCC Rcd. 1595 (Mass Med. Bur. 1992); Peter Branton, 6 FCC Rcd. 610 (1991); Industry Guidance, 16 FCC Rcd. 8008-09).

5 H.R. 3687, 108th Cong., 1st Sess. (2003).

6 Infinity Broad. Operations, Inc., 18 FCC Rcd. 19954 (2003); AMFM Radio Licenses, Inc., 18 FCC Rcd. 19917 (2003).

7 The Associated Press/lpsos Poll: Janet Jackson’s Act Bad Taste, But Not a Federal Case, February 24, 2004 (www.ipsos-na.com/news/pressrelease. cfm?id=2062&content=full). While 18 percent of those surveyed thought that the halftime show was “an illegal act,” 54 percent said that the incident was an act of bad taste but not illegal. Twenty-seven percent thought it was neither.

8 Other proposals included basing fines on the number of viewers that see or hear an alleged indecent broadcast, or on a percentage of the broadcaster’s revenues; a requirement that indecency fines lead to revocation hearings, either for every three violations or at license renewal; extension of the FCC’s power to impose fines to include talent or non-licensees that perform offending content; liability on networks for programming aired by affiliates; mandatory retention of tapes of broadcasts for 180 days; and an expedited 180-day time limit for the FCC to decide whether a broadcaster has violated indecency rules. See Broadcast Indecency Enforcement Act of 2004, 5.2056, 108th Cong. (2004), Broadcast Decency Responsibility and Enforcement Act, S.2147, 108th Cong. (2004).

9 Complaints About Various Licensees Regarding Their Airing of the “Golden Globes Awards” Program, 19 FCC Rcd, 4975 (2004) (“Golden Globes Order”); Infinity Radio License, Inc., 19 FCC Rcd. 5022 (2004) (“Infinity Radio”); Infinity Broad. Operations, Inc., 19 FCC Rcd. 5032 (2004) (“Infinity Broadcasting”); Capstar TX Ltd. P’ship, 19 FCC Rcd. 4960 (2004) (“Capstar”).

10 Enter-com Seattle License, LLC, FCC 04-89 (May 14, 2004) (“Entercom”); Emmis Radio License Corp., 19 FCC Rcd. 6452 (2004) (“Emmis Radio”); Clear Channel Broad. Licenses, Inc., 19 FCC Rcd. 6773 (2004) (“Clear Channel”).

11 Capstar ¶ 9; Infinity Broadcasting ¶ 10, Infinity Radio ¶ 5.

12 Emmis Radio ¶ 10.

13 Entercom ¶ 12; Clear Channel ¶ 12. See also Golden Globes Order ¶ 12.

14 Clear Channel ¶ 16.

15 Butler v. Michigan, 352 U.S. 380, 383 (1957) (book with obscene, immoral, lewd, lascivious language or descriptions); United States v. 12 200-ft. Reels of Film, 413 U.S. 123, 125, 130 n.7 (1973) (“movie films, color slides, photographs, and other printed and graphic material [carried] into the United States from Mexico”); Bolger v. Youngs Drug Products Corp., 463 U.S. 60 (1983) (unsolicited mail with contraceptive information); United States v. Playboy Entmt. Group, Inc., 529 U.S. 803 (2000) (cable channels primarily dedicated to sexually-oriented programs); Reno v. ACLU, 521 U.S. 844 (1997) (“indecent” and “patently offensive” Internet content).

16 E.g., Reno, 521 U.S. at 866-67, 870; Bolger, 463 U.S. at 74.

17 E.g., ACT I, 852 F.2d at 1339; Action for Children’s Television v. FCC, 932 F.2d 1504, 1508 (D.C. Cir. 1991) (“ACT II”); Information Providers’ Coalition for Defense of the First Amendment v. FCC, 928 F.2d 866, 875 (9th Cir. 1991); Alliance for Community Media, 56 Fad 105, 129 (D.C. Cir. 1995), rev’d in part and aff’d in part sub nom. Denver Area Educ. Telecomms. Consortium v. FCC, 518 U.S. 717, 756 (1996); United States v. Evergreen Media Corp. of Chicago, 832 F.Supp. 1183, 1186 (N.D. Ill. 1993).

18 Biennial Regulatory Review ¶ 86-87. See also Denver Area Educ. Telecomms. Consortium, 518 U.S. at 744 (“[c]able television broadcasting, including access channel broadcasting, is as ‘accessible to children’ as over-the-air broadcasting, if not more so”). In Denver Area, the Court upheld a provision that permitted cable operators to adopt editorial policies for leased access channels, but rejected government-imposed restrictions on indecent programs on leased and public access channels.

19 See New Indecency Enforcement Standards to be Applied to all Broadcast and Amateur Radio Licensees, 2 FCC Rcd. 2726 (1987) (“New Indecency Enforcement Standards”) (switching from indecency standard applicable to only seven specific words in Carlin monologue to generic indecency policy); Evergreen Media, Inc. v. FCC, Civil No. 92 C 5600 (N.D. Ill. Feb. 22, 1994) (settled to require the FCC to adopt industry guidance); Industry Guidance, 16 FCC Rcd. 7999 (settling enforcement action by, inter alia, committing to provide “industry guidance” on meaning of indecency standard within six months but taking six-and-a-half years to do so). Compare The KBOO Found., 16 FCC Rcd. 10731 (Enf. Bur. 2001) (proposed $7,000 forfeiture for broadcast of “Your Revolution”), with The KBOO Found., 18 FCC Rcd. 2472 (Enf. Bur. 2003) (reversing prior decision and rescinding forfeiture after “Your Revolution” was effectively banned for 21 months); compare Citadel Broad. Co., 16 FCC Rcd. 11839 (Enf. Bur. 2001) (proposing $7,000 forfeiture for broadcast of “radio edit” of “Real Slim Shady”), with Citadel Broad. Co., 17 FCC Rcd. 483 (Enf. Bur. 2002) (reversing prior decision and rescinding forfeiture after “Real Slim Shady” was effectively banned for 6 months).

20 PS/Net v. Chapman, 362 F.3d 227 (4th Cir. 2004); ACLU v. Johnson, 194 F.3d 1149 (10th Cir. 1999); Cyberspace Communications, Inc. v. Engler, 238 Fad 420 (6th Cir. 2000) (table); ACLU v. Napolitano, Civ. 00-505 TUC ACM (D. Ariz. Feb. 21, 2002); American Bookseller’s Found. for Free Expression v. Dean, 202 F.Supp.2d 300 (D. Vt. 2002); Bookfriends, Inc. v. Taft, 223 F.Supp.2d 932 (S.D. Ohio 2002).

21 See Remarks of Commissioner Michael J. Copps to the NATPE 2003 Family Programming Forum (Jan. 22, 2003) (of nearly 500 complaints received in 2002, 83% were either dismissed or denied, one company paid a fine, and the rest are pending or “in regulatory limbo”).

22 Gooding v. Wilson, 405 U.S. 518, 523 (1972); Cohen v. California, 403 U.S. 15, 20 (1971); Lewis v. New Orleans, 415 U.S. 130 (1974).

For more information, please contact:

Robert Corn-Revere Washington, D.C. (202) 508-6625 BobCornRevere@dwt.com

Ronald G. London Washington, D.C. (202) 508-6635 RonnieLondon@dwt.com

The First Amendment Law Letter is a publication of the Communications, Media and Information Technologies Group of Davis Wright Tremaine LLP. Our purpose in publishing this Advisory is to inform our clients and friends of recent developments in communications law. It is not intended, nor should it be used, as a substitute for specific legal advice as legal counsel may be given only in response to inquiries regarding particular situations.

Copyright © 2004, Davis Wright Tremaine LLP.

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