The FCC's Authority to Regulate Broadcast Indecency

January 10, 2012

The Supreme Court is scheduled to hear oral arguments today in Federal Communications Commission v. Fox Television Stations, a case that will test the FCC's authority to regulate profanity and nudity on broadcast television.

The television networks are challenging the FCC's indecency policies, arguing that they are unconstitutionally vague and violate free speech rights. The federal government disagrees, saying the FCC's regulations against broadcasting indecency are constitutional and should be upheld.

The case centers on whether the FCC can continue to apply more restrictive rules to broadcasting than it does to other media.

Is it constitutional for the FCC to police public airwaves for indecency in light of changes to television communications over the past decade, or are the FCC regulations a violation of free speech and due process?

University of Virginia School of Law professor Frederick Schauer, an expert in constitutional law:

"The issue in this case is largely whether the court will reverse its 1978 ruling, written by Justice Stevens, in FCC v. Pacifica Foundation, upholding the FCC's sanctions against George Carlin's famous 'Filthy Words' monologue. The primary basis for the 1978 decision was the court's view that broadcasting is uniquely intrusive, and that viewers or listeners would have no way of avoiding in advance the language or images that might offend them. But even in 1978, this decision was widely criticized, largely because of the court's unpersuasive distinction between the intrusiveness of broadcasting and the intrusiveness of the numerous constitutionally protected but offensive words and images that are all around us on the public streets and elsewhere. And if even in 1978 it was difficult, in the eyes of many commentators, to distinguish broadcasting from the involuntary exposure to countless offensive words and images all around us, it is even more difficult now.

The issue is not so much whether the television has changed, but whether the world has changed. Given the court's constitutional protection of offensive words and pictures throughout everything else in the public sphere, and given the proliferation of offense wrought by the Internet and much else, it seems even more difficult now than in 1978 to justify treating radio and television as uniquely intrusive."

Leslie Kendrick

Professor Leslie Kendrick, an expert on the First Amendment, particularly freedom of the press and speech:

"Normatively speaking, the state's interest in protecting minors may legitimately be set against — and sometimes prevail over — the strong presumption against regulating speech on the basis of content. In practice, however, the Supreme Court has rejected most attempts to take this interest into account — except in the broadcast arena. The court originally justified this disparate treatment on the basis of broadcast's unique pervasiveness and accessibility to children. These reasons for distinguishing broadcast from other media make little sense today, if they ever did. In addition, the Roberts Court has been largely hostile to direct content regulation and, in Brown v. Entertainment Merchants Association, to state interests in protecting minors from unsuitable speech. These factors suggest that the court could take this opportunity to reconsider the constitutionality of the FCC's regulation of indecency in general.

But there are also reasons to think the court might resolve the case on narrower grounds, such as the purported vagueness of the FCC's present policy. For one, the court avoided the constitutional question in the earlier iteration of this case, an approach that hardly bespeaks eagerness to overturn old precedent. Also, in the earlier decision the conservative justices other than Thomas seemed, in dicta, largely accepting of the FCC's approach. Meanwhile, Justice Breyer, the consummate balancer, cast constitutional doubt on the FCC's current policy but not especially on its general ability to regulate indecency.

In addition, in the present iteration, the government has wisely portrayed broadcast licenses as privileges bestowed with certain conditions, of which a decency requirement has long been one. Thus far, the Roberts Court has proved even more permissive in First Amendment 'unconstitutional conditions' cases than it has been hostile to direct regulation. This line of argument could give the court a basis on which to justify broadcast's differential treatment."

Professor G. Edward White, an expert in legal history, constitutional law and mass communication:

"This is not an easy question of constitutional law or policy, for at least three reasons.

First, the media market has definitely changed since Pacificawas decided in 1978, so one could argue that it is now anomalous for the FCC to impose indecency requirements on the broadcast networks that they in effect don't impose on cable television, and which never have been imposed on print media, the Internet, or satellite radio. The argument suggests that Pacifica was a product of a world in which traditional radio and network television broadcasting were far more pervasive sources of communication, making it more likely that 'unwilling' listeners or viewers, including children, would be exposed to indecent programing.

Second, however, a critical dimension of viewer or listener response to media communication is 'filtering,' and one could argue that if a primary purpose of indecency regulation is to prevent children from being exposed to programs with graphic sexual or scatological content, it becomes far more difficult for parents to filter such programs if the FCC's authority to regulate indecency is deemed constitutionally invalid, and thus it is no longer able to 'channel' television or radio shows with graphic content into hours of the day when parents are more likely to be able to prevent children from access to them. That argument presupposes, of course, that children may be 'harmed' in some fashion by being exposed to such content, and that parents are in a better position than their children to assess that potential harm. Those arguments may be problematic, but they are widely accepted in American culture, and invalidating the FCC's ability to regulate 'indecent' programming deprives parents of a filtering source.

Third, allowing the FCC to regulate indecent programming enables it to make selective judgments about which words or images qualify as 'indecent' in various contexts. The recent history of FCC indecency regulation suggests that its regulations are highly context-dependent. Any time there is selective application of a criterion for regulating content-based expression, courts worry about 'chilling effects' on that expression. It is clear that non-obscene expression that meets some definition of 'indecency' may not be completely prohibited without violating the First Amendment, so the FCC's selective regulation of programming that might qualify as indecent arguably runs the risk of suppressing more speech than necessary.

Given the court's recent interest in how the FCC has been implementing its policy of regulating indecency, I am inclined to think that the court might be inclined to sustain the FCC's general power to regulate indecent expression (largely on the basis of helping parents control their children's access to programming with indecent content), but require that it administer the policy less selectively to avoid 'chilling effect' and due process concerns. That might result in the FCC's abandoning the task of determining 'indecent' conduct on the basis of a particular episode in a program, and focusing more on overseeing the hours at which programs containing graphic content are aired or viewed."

Is It Legal? is an occasional feature in which UVA law professors weigh in on legal aspects of current events.

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