Regulation of Broadcast Indecency: Background and Legal Analysis
Regulation of Broadcast Indecency:
Background and Legal Analysis
Updated September 9, 2008
Henry Cohen
Legislative Attorney
American Law Division
Kathleen Ann Ruane
Legislative Attorney
American Law Division
Regulation of Broadcast Indecency:
Background and Legal Analysis
Summary
Two prominent television events placed increased attention on the Federal
Communications Commission (FCC) and the broadcast indecency statute that it
enforces. The airing of an expletive by Bono during the 2003 Golden Globe Awards,
as well as the “wardrobe malfunction” that occurred during the 2004 Super Bowl
half-time show, gave broadcast indecency prominence in the 109th and 110th
Congresses, and resulted in the enactment of P.L.109-235 (2006), which increased
the penalties for broadcast indecency by tenfold.
Federal law makes it a crime to utter “any obscene, indecent, or profane
language by means of radio communication” (18 U.S.C. § 1464). Violators of this
statute are subject to fines and imprisonment of up to two years, and the FCC may
enforce this provision by forfeiture or revocation of a broadcaster’s license. The FCC
has found that, for material to be “indecent,” it “must describe or depict sexual or
excretory organs or activities,” and “must be patently offensive as measured by
contemporary community standards for the broadcast medium.” The federal
government’s authority to regulate material that is “indecent” but not obscene was
upheld by the Supreme Court in Federal Communications Commission v. Pacifica
Foundation, which found that prohibiting such material during certain times of the
day does not violate the First Amendment.
In 1992, Congress enacted P.L. 102-356 (47 U.S.C. § 303 note), section 16(a)
of which, as interpreted by the courts, requires the FCC to prohibit “indecent”
material on broadcast radio and broadcast television from 6 a.m. to 10 p.m. Under
P.L. 109-235, “indecent” broadcasts are now subject to a fine of up to “$325,000 for
each violation or each day of continuing violation, except that the amount assessed
for any continuing violation shall not exceed a total of $3,000,000 for any single act
or failure to act.” Fines may be levied against broadcast stations, but not against
broadcast networks. The FCC appears to have the statutory authority to fine
performers as well (up to $32,500 per incident), but has taken the position that
“[c]ompliance with federal broadcast decency restrictions is the responsibility of the
station that chooses to air the programming, not the performers.”
The federal restriction on “indecent” material applies only to broadcast media,
and this stems from the fact that there are a limited number of broadcast frequencies
available and that the Supreme Court, therefore, allows the government to regulate
broadcast media more than other media. This report discusses the legal evolution of
the FCC’s indecency regulations, and provides an overview of how the current
regulations have been applied. The final section of the report considers whether
prohibiting the broadcast of “indecent” words regardless of context would violate the
First Amendment. This question arises because the Supreme Court in Pacifica left
open the question whether broadcasting an occasional expletive, as in the Bono case,
would justify a sanction.
Contents
In troduction ..................................................1
Background ..................................................2
Evolution of the FCC’s Indecency Regulations.......................4
Current Regulations............................................7
Explicitness or Graphic Nature of Material......................8
Dwelling or Repetition of Potentially Offensive Material...........9
Pandering or Titillating Nature of Material.....................10
Golden Globe Awards Decision.................................10
Super Bowl Halftime Show Decision.............................12
Other Recent Enforcement Actions...............................14
Infinity Broadcasting......................................14
Clear Channel Broadcasting.................................15
Recent Appeals Court Decisions.................................16
Fox Television Stations, Inc. v. FCC..........................16
CBS Corp. v. FCC........................................18
Congressional Response.......................................20
110 Congress...........................................21
Would Prohibiting the Broadcast of “Indecent” Words Regardless of
Context Violate the First Amendment?........................22
Broadcast Media.........................................26
Strict Scrutiny...........................................29
Second Circuit’s dicta in Fox Television Stations, Inc. v. FCC.....33
Regulation of Broadcast Indecency:
Background and Legal Analysis
Introduction
Two prominent television events placed increased attention on the Federal
Communications Commission (FCC) and the broadcast indecency statute that it
enforces.1 The airing of an expletive by Bono during the 2003 Golden Globe
Awards, as well as the “wardrobe malfunction” that occurred during the 2004 Super
Bowl half-time show, gave broadcast indecency prominence in the 109th and 110th
Congresses, and resulted in the enactment of P.L.109-235 (2006), which increased
the penalties for broadcast indecency by tenfold.
Federal law makes it a crime to utter “any obscene, indecent, or profane
language by means of radio communication” (18 U.S.C. § 1464). Violators of this
statute are subject to fines and imprisonment of up to two years, and the FCC may
enforce this provision by forfeiture or revocation of a broadcaster’s license. The FCC
has found that, for material to be “indecent,” it “must describe or depict sexual or
excretory organs or activities,” and “must be patently offensive as measured by
contemporary community standards for the broadcast medium.” The federal
government’s authority to regulate material that is “indecent” but not obscene was
upheld by the Supreme Court in Federal Communications Commission v. Pacifica
Foundation, which found that prohibiting such material during certain times of the
day does not violate the First Amendment.
In 1992, Congress enacted P.L. 102-356 (47 U.S.C. § 303 note), section 16(a)
of which, as interpreted by the courts, requires the FCC to prohibit “indecent”
material on broadcast radio and broadcast television from 6 a.m. to 10 p.m. Under
P.L. 109-235, “indecent” broadcasts are now subject to a fine of up to “$325,000 for
each violation or each day of continuing violation, except that the amount assessed
for any continuing violation shall not exceed a total of $3,000,000 for any single act
or failure to act.” Fines may be levied against broadcast stations, but not against
broadcast networks. The FCC appears to have the statutory authority to fine
performers as well (up to $32,500 per incident), but has taken the position that
1 The FCC’s indecency regulations only apply to broadcast radio and television, and not to
satellite radio or cable television. The distinction between broadcast and cable television
arises in part from the fact that the rationale for regulation of broadcast media — the dual
problems of spectrum scarcity and signal interference — do not apply in the context of
cable. As a result, regulation of cable television is entitled to heightened First Amendment
scrutiny. See Turner Broadcasting v. Federal Communications Commission, 512 U.S. 622
(1994). Cable television is also distinguished from broadcast television by the fact that
cable involves a voluntary act whereby a subscriber affirmatively chooses to bring theth
material into his or home. See Cruz v. Ferre, 755 F.2d 1415 (11 Cir. 1985).
“[c]ompliance with federal broadcast decency restrictions is the responsibility of the
station that chooses to air the programming, not the performers.”
The federal restriction on “indecent” material applies only to broadcast media,
and this stems from the fact that there are a limited number of broadcast frequencies
available and that the Supreme Court, therefore, allows the government to regulate
broadcast media more than other media. It appears likely that a court would find that
to apply the FCC’s indecency restriction to cable or satellite media would violate the
First Amendment.2
This report discusses the evolution of the FCC’s indecency regulations,
provides an overview of how the current regulations have been applied, and examines
indecency legislation that was introduced in the 109th and 110th Congress. (The bill
that increased penalties is the only such legislation that was enacted.) The final
section of this report considers whether prohibiting the broadcast of “indecent” words
regardless of context would violate the First Amendment. This issue arises because
the Supreme Court in Pacifica left open the question of whether broadcasting an
occasional expletive, as in the Bono case, would justify a sanction.
Background
On January 19, 2003, broadcast television stations in various parts of the
country aired the Golden Globe Awards. During the awards, the singer Bono, in
response to winning an award, said, “this is really, really f[***]ing brilliant.”3 In
response to this utterance, the FCC received over 230 complaints alleging that the
program was obscene or indecent, and requesting that the Commission impose
sanctions on the licensees for the broadcast of the material in question.4
The Enforcement Bureau of the FCC issued a Memorandum Opinion and Order
on October 3, 2003, denying the complaints and finding that the broadcast of the
Golden Globe Awards including Bono’s utterance did not violate federal restrictions
regarding the broadcast of obscene and indecent material.5 The Bureau dismissed the
complaints primarily because the language in question did not describe or depict
sexual or excretory activities or organs. The Bureau noted that while “the word
‘f[***]ing’ may be crude and offensive,” it “did not describe sexual or excretory
organs or activities. Rather, the performer used the word ‘f[***]ing’ as an adjective
or expletive to emphasize an exclamation.”6 The Bureau added that in similar
circumstances it “found that offensive language used as an insult rather than as a
2 See CRS Report RL33170, Constitutionality of Applying the FCC’s Indecency Restriction
to Cable Television, by Henry Cohen.
3 See In the Matter of Complaints Against Various Broadcast Licensees Regarding Their
Airing of the “Golden Globe Awards” Program, 18 F.C.C. Rcd. 19859 (2003).
4 Id. at 2.
5 Id.
6 Id. at 3.
description of sexual or excretory activity or organs is not within the scope of the
Commission’s prohibition on indecent program content.”7
The decision of the Enforcement Bureau was met with opposition from a
number of organizations and Members of Congress, and an appeal was filed for
review by the full Commission. FCC Chairman Michael Powell asked the full
Commission to overturn the Enforcement Bureau’s ruling.8
On March 18, 2004, the full Commission issued a Memorandum Opinion and
Order granting the application for review and reversing the Enforcement Bureau’s
earlier opinion.9 The Commission found that the broadcasts of the Golden Globe
Awards violated 18 U.S.C. 1464, but declined to impose a forfeiture on the broadcast
licensees because the Order reverses Commission precedent regarding the broadcast
of the “F-word.” This decision is discussed in detail below.
On February 1, 2004, CBS aired Super Bowl XXXVIII, with a half-time show
produced by the MTV network. The show included performers singing and dancing
provocatively, and ended with the exposure of the breast of one female performer.
The network received numerous complaints regarding the half-time performance and
FCC Chairman Michael Powell initiated a formal investigation into the incident.10
On September 22, 2004, the FCC released a Notice of Apparent Liability for
Forfeiture finding that the airing of the Super Bowl halftime show “apparently
violate[d] the federal restrictions regarding the broadcast of indecent material.”11 The
NAL imposes a forfeiture in the aggregate amount of $550,000 on Viacom Inc., the
licensee or ultimate parent of the licensees with regard to whom the complaint was
filed.12 On March 15, 2006, the FCC issued a Forfeiture Order imposing a
mandatory forfeiture in the amount of $550,000 on CBS for the airing of the 2004
Super Bowl halftime show. CBS appealed to the U.S. Court of Appeals for the Third
Circuit, which heard oral arguments in the case on September 11, 2007 and handed
down its decision on July 21, 2008.13 This case is discussed in greater detail below.
7 Id.
8 “FCC Chairman Seeks Reversal on Profanity,” Washington Post, January 14, 2004, at E01.
9 In the Matter of Complaints Against Various Broadcast Licensees Regarding Their Airing
of the “Golden Globe Awards” Program, File No. EB-03-IH-0110 (March 18, 2004).
10 [http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-243435A1.pdf].
11 Complaints Against Various Television Licensees Concerning Their February 1, 2004,
Broadcast of the Super Bowl XXXVIII Halftime Show, File No. EB-04-IH-0011 (September
12 Id.
13 CBS Corp. v. FCC, 535 F.3d 167 (3d Cir. 2008).
Evolution of the FCC’s Indecency Regulations
Title 18 of the United States Code makes it unlawful to utter “any obscene,
indecent, or profane language by means of radio communication.”14 Violators of this
provision are subject to fines or imprisonment of up to two years. The Federal
Communications Commission has the authority to enforce this provision by forfeiture
or revocation of license.15 The Commission’s authority to regulate material that is
indecent, but not obscene, was upheld by the Supreme Court in Federal
Communications Commission v. Pacifica Foundation.16 In Pacifica, the Supreme
Court affirmed the Commission’s order regarding the airing of comedian George
Carlin’s “Filthy Words” monologue.17 In that order, the Commission determined that
the airing of the monologue, which contained certain words that “depicted sexual and
excretory activities in a patently offensive manner,” at a time “when children were
undoubtedly in the audience” was indecent and prohibited by 18 U.S.C. § 1464.18
Pursuant to the Court’s decision, whether any such material is “patently offensive”
is determined by “contemporary community standards for the broadcast medium.”19
The Court noted that indecency is “largely a function of context — it cannot be
judged in the abstract.”20
The Commission’s order in the Pacifica case relied partially on a spectrum
scarcity argument; i.e., that there is a scarcity of spectrum space so the government
must license the use of such space in the public interest, and partially on “principles
analogous to those found in the law of nuisance.”21 The Commission noted that
public nuisance law generally aims to channel the offensive behavior rather than to
prohibit it outright. For example, in the context of broadcast material, channeling
would involve airing potentially offensive material at times when children are less
likely to be in the audience. In 1987, the Commission rejected the spectrum scarcity
argument as a sufficient basis for its regulation of broadcast indecency, but noted that
it would continue to rely upon the validity of the public nuisance rationale, including
channeling of potentially objectionable material.22 However, in its 1987 order, the
14 18 U.S.C. § 1464. “Radio communication” includes broadcast television, as the term is
defined as “the transmission by radio of writing, signs, signals, pictures, and sounds of all
kinds.” 47 U.S.C. § 153(33).
15 47 U.S.C. § 503(b).
16 438 U.S. 726 (1978).
17 The United State Court of Appeals for the District of Columbia Circuit had reversed the
Commission’s order. See 556 F.2d 9 (D.C. Cir. 1977). The Commission appealed that
decision to the Supreme Court, which reversed the lower court’s decision.
18 438 U.S. at 732.
19 Id.
20 Id. at 742.
21 Id. at 731; see, In the Matter of a Citizen’s Complaint Against Pacifica Foundation
Station WBAI (FM), New York, New York, 56 F.C.C.2d 94 (1975).
22 In the Matter of Pacifica Foundation, Inc. d/b/a Pacifica Radio Los Angeles, California,
(continued...)
Commission also stated that channeling based on a specific time of day was no
longer a sufficient means to ensure that children were not in the audience when
indecent material aired and warned licensees that indecent material aired after 10
p.m. would be actionable.23 The Commission further clarified its earlier Pacifica
order, noting that indecent language was not strictly limited to the seven words at
issue in the original broadcast in question, and that repeated use of those words was
not necessary to find that material in question was indecent.24
The Commission’s 1987 orders were challenged by parties alleging that the
Commission had changed its indecency standard and that the new standard was
unconstitutional. In Action for Children’s Television v. Federal Communications
Commission (ACT I), the United States Court of Appeals for the District of Columbia
Circuit upheld the standard used by the Commission to determine whether broadcast
material was indecent, but it vacated the Commission’s order with respect to the
channeling of indecent material for redetermination “after a full and fair hearing of
the times at which indecent material may be broadcast.”25
Following the court’s decision in Action for Children’s Television (ACT I), a
rider to the Commerce, Justice, State FY89 Appropriations Act required the FCC to
promulgate regulations to ban indecent broadcasts 24 hours a day.26 The
Commission followed the congressional mandate and promulgated regulations
prohibiting all broadcasts of indecent material.27 The new regulations were
challenged, and the United States Court of Appeals for the District of Columbia
Circuit vacated the Commission’s order.28 In so doing, the court noted that in ACT
I it held that Commission “must identify some reasonable period of time during
which indecent material may be broadcast,” thus precluding a ban on such broadcasts
at all times.29
In 1992, Congress enacted the Public Telecommunications Act of 1992, which
required the FCC to promulgate regulations to prohibit the broadcasting of indecent
material from 6 a.m. to midnight, except for broadcasts by public radio and television
22 (...continued)
2 F.C.C. Rcd. 2698 (1987). Two other orders handed down the same day articulate the
Commission’s clarified indecency standard. See also In the Matter of the Regents of the
University of California, 2 F.C.C. Rcd. 2703 (1987); In the Matter of Infinity Broadcasting
Corporation of Pennsylvania, 2 F.C.C. Rcd. 2705 (1987).
23 The Commission noted Arbitron ratings indicating that a number of children remain in the
local audience well after 10 p.m. See 2 F.C.C. Rcd. 1698, ¶ 16.
24 2 F.C.C. Rcd. 2698, ¶¶ 12 and 15.
25 852 F.2d 1332, 1344 (1988).
26 P.L. 100-459, § 608.
27 Enforcement of Prohibitions Against Broadcast Obscenity and Indecency, 4 F.C.C. Rcd.
28 Action for Children’s Television v. Federal Communications Commission (ACT II), 932
F.2d 1504 (1991), cert. denied, 503 U.S. 913 (1992).
29 Id. at 1509.
stations that go off the air at or before midnight, in which case such stations may
broadcast indecent material beginning at 10 p.m.30 The Commission promulgated
regulations as mandated in the act.31 The new regulations were challenged, and a
three-judge panel of the United States Court of Appeals for the District of Columbia
Circuit subsequently vacated the Commission’s order implementing the act and held
the underlying statute unconstitutional.32 In its order implementing the act, the FCC
set forth three goals to justify the regulations: (1) ensuring that parents have an
opportunity to supervise their children’s listening and viewing of over-the-air
broadcasts; (2) ensuring the well being of minors regardless of supervision; and (3)
protecting the right of all members of the public to be free of indecent material in the
privacy of their homes.33 The court rejected the third justification as “insufficient to
support a restriction on the broadcasting of constitutionally protected indecent
material,” but accepted the first two as compelling interests.34 Despite the finding of
compelling interests in the first two, the court found that both Congress and the FCC
had failed “to tailor their efforts to advance these interests in a sufficiently narrow
way to meet constitutional standards.”35
Following the decision of the three-judge panel, the Commission requested a
rehearing en banc.36 The case was reheard on October 19, 1994, and, on June 30,
1995, the full court of appeals held the statute unconstitutional insofar as it prohibited
the broadcast of indecent material between the hours of 10 p.m. and midnight on non-
public stations.37 In so doing, the court held that while the channeling of indecent
broadcasts between midnight and 6 a.m. “would not unduly burden the First
Amendment,” the distinction drawn by Congress between public and non-public
broadcasters “bears no apparent relationship to the compelling government interests
that [the restrictions] are intended to serve.”38 The court remanded the regulations
to the FCC with instructions to modify the regulations to permit the broadcast of
indecent material on all stations between 10 p.m. and 6 a.m.
30 P.L. 102-356, § 16, 47 U.S.C. § 303 note.
31 In the Matter of Enforcement of Prohibitions Against Broadcast Indecency in 18 U.S.C.
32 Action for Children’s Television v. Federal Communications Commission, 11 F.3d 170
(D.C. Cir. 1993).
33 8 F.C.C. Rcd. at 705-706.
34 11 F.3d at 171.
35 Id.
36 Action for Children’s Television v. Federal Communications Commission, 15 F.3d 186
(D.C. Cir. 1994).
37 Action for Children’s Television v. Federal Communications Commission (ACT III), 58
F.3d 654 (D.C. Cir. 1995), cert. denied, 516 U.S. 1043 (1996).
38 58 F.3d at 656.
Current Regulations
Following the decision in ACT III, the Commission modified its indecency
regulations to prohibit indecent broadcasts from 6 a.m. to 10 p.m.39 The modified
regulations became effective August 28, 1995.40 These regulations have been
enforced primarily with respect to radio broadcasts and thus have been applied more
often to indecent language rather than to images.41 Under these regulations,
broadcasts deemed indecent were subject to a forfeiture of up to $32,500 per
violation,42 with the FCC’s considering each utterance of an indecent word as a
separate violation, rather than viewing the entire program as a single violation.43
Fines may be levied against broadcast stations, but not against broadcast
networks. The FCC appears also to have the statutory authority to fine performers
for uttering indecent words,44 but it has taken the position that “[c]ompliance with
federal broadcast decency restrictions is the responsibility of the station that chooses
to air the programming, not the performers.”45
39 Enforcement of Prohibitions Against Broadcast Indecency in 18 U.S.C. § 1464, 10 F.C.C.
Rcd. 10558 (1995); 47 C.F.R. 73.3999(b). Subsection (b) prohibits the broadcast of material
which is obscene without any reference to time of day. Broadcast obscenity will not be
discussed in this report. For more information on obscenity, see CRS Report 95-804,
Obscenity and Indecency: Constitutional Principles and Federal Statutes, by Henry Cohen,
and CRS Report 98-670, Obscenity, Child Pornography, and Indecency: Recent
Developments and Pending Issues, by Henry Cohen.
40 60 FR 44439 (August 28, 1995).
41 Enforcement actions based on televised broadcast indecency are rare. However, the
Commission recently issued a Notice of Apparent Liability for the broadcast of indecent
material during a televised morning news program. During the program, the show’s hosts
interviewed performers with a production entitled “Puppetry of the Penis,” who appeared
wearing capes but were otherwise nude. A performer’s penis was exposed during the
broadcast. See In the Matter of Young Broadcasting of San Francisco, Inc., File No. EB-02-
IH-0786 (January 27, 2004). See also In the Matter of Complaints Against Various
Licensees Regarding Their Broadcast of the Fox Television Network Program “Married by
America” on April 7, 2003, File No. EB-03-IH-0162 (October 12, 2004).
42 Under 47 U.S.C. § 503(b)(2)(A), the maximum fine per violation is $25,000. However,
the maximum forfeiture amount was increased to $32,500 pursuant to the Debt Collection
Improvement Act of 1996, Public Law 104-134, which amended the Federal Civil Monetary
Penalty Inflation Adjustment Act of 1990, Public Law 101-410. See 47 C.F.R. § 1.80.
43 Regulations set a maximum forfeiture of $325,000 for any single act or failure to act,
which arguably limits the forfeiture for a single broadcast. See 47 C.F.R. § 1.80.
44 47 U.S.C. § 503(b)(1)(D) provides that the FCC may impose a forfeiture penalty upon any
“person” who violates 18 U.S.C. § 1464, which makes it a crime to “utter” indecent
language. In addition, 47 U.S.C. § 503(b)(6)(B) provides that the FCC may not impose a
forfeiture penalty on a person who does not hold a broadcast station license if the violation
occurred more than one year prior to the date of issuance of the required notice or notice of
apparent liability. This suggests that the FCC may fine a performer if the violation occurred
within one year of such date.
45 Complaints Against Various Television Licensees Concerning Their February 1, 2004,
(continued...)
On June 15, 2006, the President signed S. 193, 109th Congress, into law, and it
became P.L. 109-235, the Broadcast Decency Enforcement Act of 2005. This law
increased the penalty for indecent broadcasts tenfold, to $325,000 for each violation,
with a maximum of $3 million “for any single act or failure to act.” This increased
penalty may be levied against “a broadcast station licensee or permittee; or . . . an
applicant for any broadcast license, permit, certificate, or other instrument or
authorization issued by the Commission.” If the FCC were to change its policy and
impose fines on performers, it could apparently do so only under the provision
(which remains in effect) that authorizes forfeitures of up to $32,500 per violation.46
To determine whether broadcast material is in fact indecent, the Commission
must make two fundamental determinations: (1) that the material alleged to be
indecent falls within the subject matter scope of the definition of indecency — the
material in question must describe or depict sexual or excretory organs or activities;
and (2) that the broadcast is patently offensive as measured by contemporary
community standards for the broadcast medium.47 If the material in question does
not fall within the subject matter scope of the indecency definition, or if the broadcast
occurred during the “safe harbor” hours (between 10 p.m. and 6 a.m.), the complaint
is usually dismissed. However, if the Commission determines that the complaint
meets the subject matter requirements and was aired outside the “safe harbor” hours,
the broadcast in question is evaluated for patent offensiveness. The Commission
notes that in determining whether material is patently offensive, the full context is
very important, and that such determinations are highly fact-specific.
The Commission has identified three factors that have been significant in recent
decisions in determining whether broadcast material is patently offensive:
(1) the explicitness or graphic nature of the description or depiction of sexual or
excretory organs or activities; (2) whether the material dwells on or repeats at
length descriptions of sexual or excretory organs or activities; (3) whether the
material appears to pander or is used to titillate, or whether the material appears48
to have been presented for its shock value.
A discussion of cases that address each of these factors follows.
Explicitness or Graphic Nature of Material. Generally, the more explicit
or graphic the description or depiction, the greater the likelihood that the material
will be deemed patently offensive and therefore indecent. For example, the
Commission imposed a forfeiture on a university radio station for airing a rap song
45 (...continued)
Broadcast of the Super Bowl XXXVIII Halftime Show, File No. EB-04-IH-0011 (September
46 See note 41, supra.
47 See In the Matter of Industry Guidance on the Commission’s Case Law Interpreting 18
U.S.C. § 1464 and Enforcement Policies Regarding Broadcast Indecency, File No. EB-00-
IH-0089 (April 6, 2001) [http://www.fcc.go v/eb/Orders/2001/fcc01090.html].
48 Id.
that included a line depicting anal intercourse.49 In that case, the Commission
determined that the song described sexual activities in graphic terms that were
patently offensive and therefore indecent. Since the song was broadcast in the mid-
afternoon, there was a reasonable risk that children were in the audience, thus giving
rise to the Commission’s action.50
Broadcasts need not be as graphic as the song in the above case to give rise to
the imposition of an FCC forfeiture. Broadcasts consisting of double entendres or
innuendos may also be deemed indecent if the “sexual or excretory import is
unmistakable.” The FCC issued a notice of apparent liability and imposed a
forfeiture on several stations for airing a song that included the following lines: “I
whipped out my Whopper and whispered, Hey, Sweettart, how’d you like to Crunch
on my Big Hunk for a Million Dollar Bar? Well, she immediately went down on my
Tootsie Roll and you know, it was like pure Almond Joy.”51 The Commission
determined that the material was indecent even though it used candy bar names to
substitute for sexual activities. In one notice concerning the broadcast of the song,
the Commission stated that “[w]hile the passages arguably consist of double entendre
and indirect references, the language used in each passage was understandable and
clearly capable of specific sexual meaning and, because of the context, the sexual
import was inescapable.”52 The nature of the lyrics, coupled with the fact that the
song aired between 6 a.m. and 10 a.m., gave rise to the imposition of a forfeiture.
Dwelling or Repetition of Potentially Offensive Material. Repetition
of and persistent focus on a sexual or excretory activity could “exacerbate the
potential offensiveness of broadcasts.” For example, the FCC issued a notice of
apparent liability and imposed a forfeiture on a radio station that broadcast an
extensive discussion of flatulence and defecation by radio personality “Bubba, the
Love Sponge.”53 Though the broadcast did not contain any expletives, the
Commission found that the material dwelt on excretory activities and therefore was
patently offensive.
While repetition can increase the likelihood that references to sexual or
excretory activities are deemed indecent, where such references have been made in
passing or are fleeting in nature, the Commission has found that the reference was not54
indecent even when profanity has been used. For example, the Commission
49 Notice of Apparent Liability, State University of New York, 8 F.C.C. Rcd. 456 (1993).
50 Id.
51 Notice of Apparent Liability, KGB Incorporated, 7 F.C.C. Rcd. 3207 (1992). See also
Great American Television and Radio Company, Inc., 6 F.C.C. Rcd. 3692 (1990); WIOD,
Inc., 6 F.C.C. Rcd. 3704 (1989).
52 6 F.C.C. Rcd. 3692.
53 Notice of Apparent Liability, Citicasters Co., 13 F.C.C. Rcd. 22004 (1998).
54 The Commission has recently indicated that “the mere fact that specific words or phrases
are not sustained or repeated does not mandate a finding that material that is otherwise
patently offensive to the broadcast medium is not indecent.” In the Matter of Complaints
Against Various Broadcast Licensees Regarding the Airing of the “Golden Globe Awards”
(continued...)
determined that the following phrase — “The hell I did, I drove mother-f[***]er, oh.”
— uttered by an announcer during a radio morning show, was not indecent.55 The
Commission declined to take action regarding the broadcast because it contained only
a “fleeting and isolated utterance . . . within the context of live and spontaneous
programming.”56 Certain fleeting references may, however, be found indecent where
other factors contribute to the broadcast’s patent offensiveness. For example, the
Commission has imposed forfeitures on stations for airing jokes that refer to sexual
activities with children.57
Pandering or Titillating Nature of Material. In determining whether
broadcast material is indecent, the Commission also looks to the purpose for which
the material is being presented. Indecency findings generally involve material that
is presented in a pandering or titillating manner, or material that is presented for the
shock value of its language. For example, the Commission deemed a radio call-in
survey about oral sex to be indecent based in part on the fact that the material was
presented in a pandering and titillating manner.58
Whether a broadcast is presented in a pandering or titillating manner depends
on the context in which the potentially indecent material is presented. Explicit
images or graphic language does not necessarily mean that the broadcast is being
presented in a pandering or titillating manner. For example, the Commission
declined to impose a forfeiture on a television station for airing portions of a high
school sex education class that included the use of “sex organ models to demonstrate
the use of various birth control devices.”59 In dismissing the complaint, the
Commission held that, “[a]lthough the program dealt with sexual issues, the material
presented was clinical or instructional in nature and not presented in a pandering,60
titillating, or vulgar manner.”
Golden Globe Awards Decision
As noted above, on March 18, 2004, the Federal Communications Commission
overturned an earlier decision by the Commission’s Enforcement Bureau regarding
the broadcast of the word “f[***]ing” during the 2003 Golden Globe Awards. In the
earlier decision, the Enforcement Bureau had found that the broadcast of the program
54 (...continued)
Program, File No. EB-03-IH-0110 (March 18, 2004). See section entitled “Golden Globe
Awards Decision,” below.
55 L.M. Communications of South Carolina, Inc., 7 F.C.C. Rcd. 1595 (1992).
56 Id.
57 See Notice of Apparent Liability, Temple Radio, Inc., 12 F.C.C. Rcd. 21828 (1997); Notice
of Apparent Liability, EZ New Orleans, Inc., 12 F.C.C. Rcd. 4147 (1997).
58 Notice of Apparent Liability, Rusk Corporation, Radio Station KLOL, 5 F.C.C. Rcd. 6332
(1990).
59 In the Matter of Application for Review of the Dismissal of an Indecency Complaint
Against King Broadcasting Co., 5 F.C.C. Rcd. 2971 (1990).
60 Id.
including the utterance did not violate federal restrictions regarding the broadcast of
obscene and indecent material.61 The Bureau dismissed the complaints primarily
because the language in question did not describe or depict sexual or excretory
activities or organs.
In its March 18 Memorandum Opinion and Order, the full Commission
concluded that the broadcast of the Golden Globe Awards did include material that
violated prohibitions on the broadcast of indecent and profane material.62 In
reversing the Bureau, the Commission determined that the “phrase at issue is within
the scope of our indecency definition because it does depict or describe sexual
activities.”63 Although the Commission “recognize[d] NBC’s argument that the ‘F-
Word’ here was used ‘as an intensifier,’” it nevertheless concluded that, “given the
core meaning of the ‘F-Word,’ any use of that word or a variation, in any context,
inherently has a sexual connotation, and therefore falls within the first prong of our
indecency definition.”64
Upon finding that the phrase in question fell within the first prong of the
definition of “indecency,” the Commission turned to the question of whether the
broadcast was patently offensive under contemporary community standards for the
broadcast medium. The Commission determined that the broadcast was patently
offensive, noting that “[t]he ‘F-Word’ is one of the most vulgar, graphic and explicit
descriptions of sexual activity in the English language,” and that “[t]he use of the ‘F-
Word’ here, on a nationally telecast awards ceremony, was shocking and
gratuitous.”65 The Commission also rejected “prior Commission and staff action
[that] have indicated that isolated or fleeting broadcasts of the ‘F-Word’ such as that
here are not indecent or would not be acted upon,” concluding “that any such
interpretation is no longer good law.”66 The Commission further clarified its
position, stating “that the mere fact that specific words or phrases are not sustained
or repeated does not mandate a finding that material that is otherwise patently
offensive to the broadcast medium is not indecent.”67
61 Id.
62 The Commission declined to impose a forfeiture on the broadcast licensees named in the
complaint because they were not “on notice” regarding the new interpretations of the
Commission’s regulations regarding broadcast indecency and the newly adopted definition
of profanity. The Commission also indicated that it will not use its decision in this case
adversely against the licensees during the license renewal process.
63 In the Matter of Complaints Against Various Broadcast Licensees Regarding Their Airing
of the “Golden Globe Awards” Program, File No. EB-03-IH-0110 at 4 (March 18, 2004).
64 Id. Similarly, in March, 2006, the FCC decided that “s[***]” has an “inherently excretory
connotation” and therefore could not be used from 6 a.m. to 10 p.m. See, @$#&*% Ken
Burns! PBS Scrubbing G.I. Mouths With Soap, New York Observer, October 2, 2006, p. 1.
65 Id. at 5.
66 Id. at 6. See section entitled “Dwelling or Repetition of Potentially Indecent Material,”
above.
67 Id.
In addition to the determination that the utterance of the word “f[***]ing”
during the Golden Globe Awards was indecent, the Commission also found, as an
independent ground for its decision, that use of the word was “profane” in violation
of 18 U.S.C. 1464.68 In making this determination, the Commission cited dictionary
definitions of “profanity” as “‘vulgar, irreverent, or coarse language,’”69 and a
Seventh Circuit opinion stating that “profanity” is “‘construable as denoting certain
of those personally reviling epithets naturally tending to provoke violent resentment
or denoting language so grossly offensive to members of the public who actually hear
it as to amount to a nuisance.’”70 The Commission acknowledged that its limited
case law regarding profane speech has focused on profanity in the context of
blasphemy, but stated that it would no longer limit its definition of profane speech
in such manner. Pursuant to its adoption of this new definition of “profane,” the
Commission stated that, depending on the context, the “‘F-Word’ and those words
(or variants thereof) that are as highly offensive as the ‘F-Word’” would be
considered “profane” if broadcast between 6 a.m. and 10 p.m.71 The Commission
noted that other words would be considered on a case-by-case basis.
The Second Circuit’s decision in Fox Television Stations, Inc. v. FCC, discussed
below at pages 16-17, did not involve the Bono case, but it effectively overturned it.
Super Bowl Halftime Show Decision
As noted above, on September 22, 2004, the FCC released a Notice of Apparent
Liability for Forfeiture imposing a $550,000 forfeiture on several Viacom-owned
CBS affiliates for the broadcast of the Super Bowl XXXVIII halftime show on
February 1, 2004, in which a performer’s breast was exposed.72 The Commission
determined that the show, which was aired at approximately 8:30 p.m. Eastern
Standard Time, violated its restrictions on the broadcast of indecent material.
In its analysis, the Commission determined that since the broadcast included a
performance that culminated in “on-camera partial nudity,” and thus satisfied the first
68 Id. at 7. It should be noted that, although in this case the Commission found that the
broadcast in question was both indecent and profane, there are certain to be words that could
be deemed “profane,” but do not fit the Commission’s definition of “indecent.” Under the
newly adopted definition of “profanity,” many words could arguably be found “profane”
because they provoke “violent resentment” or are otherwise “grossly offensive,” but not be
found “indecent” because they do not refer to any sexual or excretory activity or organ or
even “inherently” have a sexual connotation, as the Commission found the phrase that Bono
uttered to have. Presumably, it is these words that the Commission will consider on a case-
by-case basis.
69 Id. at 7, citing Black’s Law Dictionary 1210 (6th ed. 1990) and American Heritage College
Dictionary 1112 (4th ed. 2002).
70 Id., citing Tallman v. United States, 465 F.2d 282, 286 (7th Cir. 1972).
71 Id.
72 Complaints Against Various Television Licensees Concerning Their February 1, 2004,
Broadcast of the Super Bowl XXXVIII Halftime Show, File No. EB-04-IH-0011 (September
part of the indecency analysis, further scrutiny was warranted to determine whether
the broadcast was “patently offensive as measured by contemporary community
standards for the broadcast medium.”73 The Commission found that the performance
in question was “both explicit and graphic,” and rejected the licensees’ contention
that since the exposure was fleeting, lasting only 19/32 of a second, it should not be
deemed indecent.74 In determining whether the material in question was intended to
“pander to, titillate and shock the viewing audience,” the Commission noted that the
performer’s breast was exposed after another performer sang, “gonna have you naked
by the end of this song.”75 The Commission found that the song lyrics, coupled with
simulated sexual activities during the performance and the exposure of the breast,
indicated that the purpose of the performance was to pander to, titillate and shock the
audience, and the fact that the actual exposure of the breast was brief, as noted above,
was not dispositive.76
The Commission ordered each Viacom-owned CBS affiliate to pay the statutory
maximum forfeiture of $27,500 for the broadcast, for a total forfeiture of $550,000.
The forfeiture was imposed on the Viacom-owned affiliates because of Viacom’s
participation in and planning of the Super Bowl halftime show with MTV networks,
another Viacom subsidiary.77
Following the issuance of the Notice of Apparent Liability for Forfeiture, the
affiliates are “afforded a reasonable period of time (usually 30 days from the date of
the notice) to show, in writing, why a forfeiture penalty should not be imposed or
should be reduced, or to pay the forfeiture.”78 CBS filed an opposition to the Notice
of Apparent Liability on November 5, 2004. The opposition challenged the forfeiture
on various grounds, including that the test for indecency was not met and that the
forfeiture violates the First Amendment.
On March 15, 2006, the FCC issued a Forfeiture Order imposing a mandatory
forfeiture in the amount of $550,000 on CBS for the airing of the 2004 Super Bowl
halftime show.79 CBS appealed to the U.S. Court of Appeals for the Third Circuit,
which heard oral arguments in the case on September 11, 2007.80 The Third Circuit
panel handed down its decision invalidating the fine in this case on July 21, 2008.
The court’s decision is discussed in greater detail below.
73 Id. at ¶ 11.
74 Id. at ¶ 13.
75 Id. at ¶ 14.
76 Id.
77 Id. at ¶¶ 17 - 24.
78 47 C.F.R. § 1.80(f)(3).
79 In the Matter of Complaints Against Various Television Licensees Concerning Their
February 1, 2004, Broadcast of the Super Bowl XXXVIII Halftime Show, File No. EB-04-IH-
80 CBS Corp. v. FCC, 535 F.3d 167 (3d Cir. 2008).
Other Recent Enforcement Actions
In addition to the Order regarding the 2004 Super Bowl halftime show, the FCC
issued several Notices of Apparent Liability for various television broadcasts
occurring between February 2, 2002, and March 8, 2005.81
Of the six programs for which a forfeiture was proposed, two of the complaints
were based on the use of “indecent” language, two were based on sexually explicit
images, and two programs were cited for both language and sexual innuendo.82 In
determining whether a forfeiture was appropriate, the Commission applied the
modified analysis first used in the Golden Globe Awards Order with respect to
language that is deemed “indecent,” and in the Super Bowl Halftime Show Order
regarding sexually explicit imagery.83
In addition to the Commission’s recent actions with respect to televised
programming, the Commission had previously imposed forfeitures on a number of
radio stations for broadcast indecency.84 We now discuss two of its more recent
high-profile actions related to radio programming. Each of these actions resulted in
a consent decree between the Commission and the broadcaster.
Infinity Broadcasting. On October 2, 2003, the Commission issued a Notice
of Apparent Liability to Infinity Broadcasting for airing portions of the “Opie &
Anthony Show” during which the hosts conducted a contest entitled “Sex for Sam”
which involved couples having sex in certain “risky” locations throughout New York
City in an effort to win a trip.85 The couples, accompanied by a station employee,
were to have sex in as many of the designated locations as possible. They were
assigned points based on the nature of the location and the activities in which they
engaged. The station aired discussions between the hosts of the show and the station
employee accompanying the couples which consisted of descriptions of the sexual
activities of the participating couples and the locations in which they engaged in
sexual activities. One discussion involved an description of a couple apparently
engaging in sexual activities in St. Patrick’s Cathedral.
The Commission determined that the broadcast made “graphic and explicit
references to sexual and excretory organs and activity” despite the fact that colloquial
terms, rather than explicit or graphic terms, were used in the descriptions. The
81 In the Matter of Complaints Regarding Various Television Broadcasts Between February
82 Id. Also, three of the programs for which forfeitures were proposed were Spanish-
language programs.
83 The Commission found violations, but declined to impose forfeitures with respect to
several programs that were aired prior to the Golden Globe Awards Order, at a time when
the Commission would not have taken enforcement actions against the isolated use of
expletives. Id. at ¶¶ 100 - 137.
84 For a complete list of recent actions related to broadcast indecency, see
[ ht t p: / / www.f cc.gov/ eb/ br oadcast / obsci nd.ht ml ] .
85 In the Matter of Infinity Broadcasting, et al., EB-02-IH-0685 (October 2, 2003).
Commission found that “[t]o the extent that the colloquial terms that the participants
used to describe organs and activities could be described as innuendo rather than as
direct references, they are nonetheless sufficient to render the material actionably
indecent because the ‘sexual [and] excretory import’ of those references was
‘unmistakable.’”86 The Commission also found that the hosts of the show “dwelled
at length on and referred repeatedly to sexual or excretory activities and organs,” and
that “the descriptions of sexual and excretory activity and organs were not in any way
isolated and fleeting.”87
On November 23, 2004, the FCC entered into a consent decree with Infinity
regarding the Opie & Anthony NAL.88 Pursuant to the decree, Infinity, a subsidiary
of Viacom, agreed to make a voluntary contribution to the United States Treasury in
the amount of $3.5 million and to adopt a company-wide compliance plan for the
purpose of preventing the broadcast of indecent material. As part of the company-
wide plan, Viacom agreed to install delay systems to edit “potentially problematic”
live programming and to conduct training with respect to indecency regulations for
all of its on-air talent and employees who participate in programming decisions.
Clear Channel Broadcasting. On January 27, 2004, the Commission issued
a Notice of Apparent Liability to Clear Channel Broadcasting for repeated airings of89
the “Bubba, the Love Sponge” program which included indecent material. The
Commission found that all the broadcasts in question involved “conversations about
such things as oral sex, penises, testicles, masturbation, intercourse, orgasms and
breasts.”90 The Commission determined that each of the broadcasts in question
contained “sufficiently graphic and explicit references,” which were generally
repeated throughout the broadcast in a pandering and titillating manner.
In one broadcast, the station aired a segment involving skits in which the voices91
of purported cartoon characters talk about drugs and sex. The skits were inserted
between advertisements for Cartoon Network’s Friday-night cartoons. The
Commission determined that “the use of cartoon characters in such a sexually explicit
manner during hours of the day when children are likely to be listening is shocking
86 Id. at 8.
87 Id. at 9. The Commission noted that the contest portion of the broadcast in question lasted
over an hour and was reproduced in a 203-page transcript.
88 See In the Matter of Viacom Inc., Infinity Radio Inc., et. al., FCC 04-268 (November 23,
2004) [http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-04-268A1.pdf]. The decree
also covers several other actions pending against Viacom-owned Infinity Radio stations and
broadcast television stations, but does not cover the proceedings related to the Super Bowl
halftime show discussed supra.
89 In the Matter of Clear Channel Broadcasting Licenses, Inc., et al., File No. EB-02-IH-
90 Id. at 4.
91 Id. at 5.
and makes this segment patently offensive.”92 The Commission also cited the
“calculated and callous nature of the stations’ decision to impose this predictably
offensive material upon young, vulnerable listeners” as “weighing heavily” in its
determination.93
On April 8, 2004, the Commission released another Notice of Apparent Liability
against Clear Channel Communications for airing allegedly indecent material during
the “Howard Stern Show.”94 For the first time, the Commission sought to impose
separate statutory maximum forfeitures for each indecent utterance during the
program in question, rather than imposing a single fine for the entire program.95
The Commission entered into a consent decree with Clear Channel on June 9,
2004. The decree requires Clear Channel to make a “voluntary contribution” of $1.75
million to the United States Treasury and outlines “a company-wide compliance plan
for the purpose of preventing the broadcast over radio or television of material
violative of the indecency laws.”96 As part of the compliance plan, Clear Channel
will “conduct training on obscenity and indecency for all on-air talent and employees
who materially participate in programming decisions, which will include tutorials
regarding material that the FCC does not permit broadcasters to air.”97 The plan also
requires Clear Chanel to suspend any employee accused of airing, or who materially
participates in the decision to air, obscene or indecent material while an investigation
is conducted following the issuance of a Notice of Apparent Liability. Such
employees will be terminated without delay if the NAL results in enforcement action
by the FCC.
Recent Appeals Court Decisions
Two major cases were decided by federal courts of appeals in 2007 and 2008.
Both cases invalidated forfeiture orders the FCC had issued against broadcasters for
transmitting fleeting indecent material over the airwaves. The courts’ decisions are
discussed in this section.
Fox Television Stations, Inc. v. FCC. On December 20, 2006, the U.S.
Court of Appeals for the Second Circuit heard oral arguments in a case brought by
four television networks — CBS, ABC, NBC, and Fox Television — challenging the
FCC’s authority to regulate “indecent” material. The FCC had taken action against,
among other broadcasts, two award shows, described in an Associated Press article
92 Id. at 6.
93 Id.
94 In the Matter of Clear Channel Broadcasting Licensees, File No. EB-03-IH — 159 (April
95 See Statement of Commissioner Michael J. Copps, [http://hraunfoss.fcc.gov/edocs_
public/attachmatch/DOC-245911A1.pdf], p. 2.
96 See In the Matter of Clear Channel Communications, Inc., FCC 04-128 (June 9, 2004) at
[http://hraunfoss.fcc.gov/ edocs_public/attachma tch/FCC-04-128A1.pdf].
97 Id. at 7.
as, “a December 9, 2002, broadcast of the Billboard Music Awards in which singer
Cher used the phrase, ‘F — - ‘em,’ and a December 10, 2003, Billboard awards show
in which reality show star Nicole Richie said: ‘Have you ever tried to get cow s — -
out of a Prada purse? It’s not so f—— — simple.’”98 These incidents raise the same
questions that FCC’s action against the Bono expletive raised: whether a fleeting
isolated expletive is “indecent” under federal law, and, if so, whether the First
Amendment permits the FCC to enforce the law by punishing broadcasters for such
utterances.
On June 4, 2007, the Second Circuit, in a 2-1 decision, which the Supreme
Court has agreed to review, found “that the FCC’s new policy regarding ‘fleeting
expletives’ represents a significant departure from positions previously taken by the
agency and relied on by the broadcast industry. We further find that the FCC has
failed to articulate a reasoned basis for this change in policy. Accordingly, we hold
that the FCC’s new policy regarding ‘fleeting expletives’ is arbitrary and capricious
under the Administrative Procedure Act.”99
The court rejected several reasons that the FCC gave for departing from its
previous positions. The FCC, for example, attempted to justify its stance on fleeting
expletives on the basis that “granting an automatic exemption for ‘isolated or
fleeting’ expletives unfairly forces viewers (including children) to take ‘the first
blow.’”100 The Second Circuit could not “accept this argument as a reasoned basis
justifying the Commission’s new rule. First, the Commission provides no reasonable
explanation for why it has changed its perception that a fleeting expletive was not a
harmful ‘first blow’ for the nearly thirty years between Pacifica and Golden Globes.
More problematic, however, is that the ‘first blow’ theory bears no rational
connection to the Commission’s actual policy regarding fleeting expletives. As the
FCC itself stressed during oral argument in this case, the Commission does not take
the position that any occurrence of an expletive is indecent or profane under its rules.
For example, although ‘there is no outright news exemption from our indecency
rules,’ . . . the Commission will apparently excuse an expletive when it occurs during
a ‘bona fide news interview . . . .’”101
Another FCC argument that the court rejected was that it is “difficult (if not
impossible) to distinguish whether a word is being used as an expletive or as a literal
description of sexual or excretory functions.”102 The court found, “This defies any
commonsense understanding of these words, which, as the general public knows, are
often used in everyday conversation without any ‘sexual or excretory’ meaning.
98 Larry Neumeister, Appeals court panel grills government lawyer in indecency case,
Associated Press State & Local Wire (December 20, 2006).
99 Fox Television Stations, Inc. v. Federal Communications Commission, 489 F.3d 444, 447
(2d Cir. 2007), cert. granted, No. 07-582 (U.S. March 17, 2008).
100 Id. at 458.
101 Id.
102 Id. at 459.
Bono’s exclamation . . . is a prime example of a non-literal use of the ‘F-Word’ that
has no sexual connotation.”103
The court also noted that the FCC’s decision was “devoid of any evidence that
suggests a fleeting expletive is harmful,” which “would seen to be particularly
relevant today when children likely hear this language far more often from other
sources than they did in the 1970s when the Commission first began sanctioning
indecent speech.” In addition, the court found, “The Commission’s new approach
to profanity is supported by even less analysis, reasoned or not.”104
Having overturned the FCC policy on statutory grounds, the court had no
occasion to decide whether it also violated the First Amendment. It explained,
however, why it was “skeptical that the Commission can provide a reasonable
explanation for its ‘fleeting expletive’ regime that would pass constitutional
muster.”105 The final section of this report examines this aspect of the court’s
opinion.
CBS Corp. v. FCC. On July 21, 2008, the U.S. Court of Appeals for the
Third Circuit issued a unanimous decision to invalidate the FCC’s fine against CBS
broadcasting station affiliates for the broadcast of the Super Bowl Halftime Show106
that included a brief instance of partial nudity. The court decided to invalidate the
fine because the FCC had acted arbitrarily and capriciously when finding that the
brief nudity was actionably indecent.
In its review of the FCC’s previous actions in this area, the Court noted that the
FCC has the power to regulate indecency over the broadcast airwaves, but for much
of the FCC’s history the agency maintained an exception for fleeting instances of
indecency.107 The Commission argued that its policy exempting fleeting instances
of indecency over broadcast from enforcement applied only to fleeting indecent
language and not to images.108 The FCC claimed that fleeting indecent images had
always been subject to enforcement; therefore, there was no departure from the
FCC’s previous approach to sanctions regarding such images. As a result, the FCC
argued that the agency did not have to articulate a reasoned basis for its shift in
policy, and it provided none.
The Court examined the FCC’s claim that the agency had previously made the
distinction between images and language and that indecent fleeting images had
103 Id.
104 See text accompanying notes 67-70, supra.
105 Id. at 462.
106 CBS Corp. v. FCC, 535 F.3d 167 (3d Cir. 2008). For a discussion of the incidents giving
rise to the FCC’s forfeiture order, see the section entitled “Superbowl Half Time Show
Decision,” supra.
107 Id. at 174.
108 Id.
always been subject to FCC enforcement.109 The Court found those claims to be
unfounded. In its review of the FCC’s previous decisions, the court could find no
distinction between the way the agency treated fleeting indecent language as opposed
to indecent images.110 The court cited instances in which the FCC declined to issue
fines for fleeting indecent images. In declining to institute enforcement actions, the
agency had stated that the images were fleeting and covered by its policy of non-
enforcement.111 The court decided, on that basis, that the FCC’s decision to consider
the fleeting indecent image broadcast during the Halftime Show to be actionable was
a shift in the FCC’s policy towards the enforcement against such images.
Because the agency had decided to implement a policy shift, the agency was
required to articulate a reasoned basis for doing so in order for the departure to be
valid under the Administrative Procedure Act.112 As noted above, the FCC argued
that its policy toward fleeting indecent images had not changed. Consequently, the
FCC articulated no reason for the shift in policy identified by the court of appeals.
Because the FCC provided no basis for its departure from previous enforcement
practices, the Court held that the deviation from the prior policy of restraining from
enforcement against fleeting images was arbitrary and capricious to the extent that
it violated the APA.113 The fine, therefore, could not be imposed on CBS for two
reasons. First, the underlying policy shift was invalid, having no reasoned basis.
Second, even if the policy had a reasoned basis, the enforcement action against CBS
represented the first time that the FCC had articulated its intention to take action
against fleeting indecent images (assuming, as the Commission argued, that it had not
done so in its Golden Globes decision). The new policy could not be applied
retroactively to fine CBS in this case.114 The court did not consider whether a policy
punishing fleeting indecent images over broadcast television would violate the First
Amendment.
109 Id. at 176-184.
110 Id. at 184.
111 Id. at 184-185.
112 Id. at 188-189.
113 Id. at 189.
114 Id. Upon deciding that the FCC’s new policy regarding fleeting images was invalid under
the APA, the court was not obligated to reach the second question raised by the case, which
was whether CBS had properly been held vicariously liable for the actions of the performers.
The court chose, however, to address this question in dicta, and determined that, under two
of the FCC’s theories of vicarious liability, the fine would have been improperly imposed
upon the broadcasters. As to a third FCC theory of vicarious liability, which was that the
broadcasters had willfully violated the FCC’s regulations by failing to take adequate
precautionary measures, the court determined that the definition of “willful” was unclear
and remanded the question to the FCC for a decision on that issue. See CBS Corp. v. FCC,
Congressional Response
Legislation addressing broadcast indecency was introduced during the 109th
Congress.
H.R. 310, 109th Congress, entitled the Broadcast Decency Enforcement Act of
2005, would increase penalties for the broadcast of obscene, indecent, or profane
material to a maximum of $500,000 for each violation, and would provide penalties
for nonlicensees, such as artists and performers.115 In addition to the increased
forfeiture amount, the Federal Communications Commission would be able to
require licensees to broadcast public service announcements that serve the
educational and informational needs of children and require such announcements to
reach an audience up to five times greater than the size of the audience that is
estimated to have been reached by the obscene, indecent or profane broadcast. Also,
any violation of the Commission’s indecency regulations could be considered when
determining whether to grant or renew a broadcast license, and three or more
indecency violations would trigger a license revocation proceeding. The legislation
would also require the Commission to act upon allegations of indecency within 180
days of the receipt of the allegation.
On February 9, 2005, the House Committee on Energy and Commerce reported
H.R. 310 favorably without amendment. The House passed H.R. 310 on February
16, with one amendment. The amendment made several nonsubstantive technical
changes and added a section requiring the FCC to revise its policy statement
regarding broadcast indecency within nine months of the date of enactment of the
legislation and at least once every three years thereafter.116
H.R. 1420, 109th Congress, entitled the Families for ED Advertising Decency
Act, would require the Federal Communications Commission to revise its
interpretations of, and enforcement policies concerning, the broadcast of indecent
material to treat as indecent any advertisement for a medication for the treatment of
erectile dysfunction, thus prohibiting the airing of such advertisements between the
hours of 6 a.m. and 10 p.m.
H.R. 1440, 109th Congress, entitled the Stamp Out Censorship Act of 2005,
would prohibit the Federal Communications Commission from imposing forfeitures
for indecency on nonbroadcast programming.
S. 193, 109th Congress, also entitled the Broadcast Decency Enforcement Act
of 2005, was signed into law by the President on June 15, 2006, and became P.L.
115 This bill appears to be substantially similar to H.R. 3717, as reported by the House
Committee on Energy and Commerce, on March 3, 2004.
116 H.Amdt. 10. The FCC’s policy statement on broadcast indecency was released on April
or profane material to $325,000 for each violation, with a cap of $3,000,000 for any
single act or failure to act.117
S. 616, 109th Congress, entitled the Indecent and Gratuitous and Excessively
Violent Programming Control Act of 2005, would, among other things, require the
Federal Communications Commission to study the effectiveness of measures used
by multichannel video programming distributors to protect children from exposure
to indecent and violent programming. If the Commission were to determine that such
measures were not effective, the legislation directs the Commission to initiate a
rulemaking proceeding to adopt measures to protect children from indecent
programming carried by multichannel video programming distributors during the
hours when children are reasonably likely to be a substantial portion of the television
audience. The bill would also increase the penalty for the broadcast of obscene,
indecent, or profane language or images to $500,000, with a maximum forfeiture for
any violations occurring in a given 24-hour period set at $3,000,000. The
Commission would be required to take certain factors into consideration when
imposing a forfeiture, and would be required to conduct public hearings or forums
prior to the imposition of a forfeiture. Additionally, broadcast licensees would be
allowed to preempt programming from a network organization that it deems obscene,
and all television and radio broadcast licensees and multichannel video programming
distributors would be required to provide a warning of the specific content of each
recorded or scripted program it broadcasts.
Fewer bills have been introduced relating to broadcast indecency during the
H.R. 2738, 110th Congress, entitled the Family and Consumer Choice Act of
2007, would not apply to broadcast indecency but would regulate indecency by
requiring multichannel video programming distributors (cable operators, broadcast
satellite service providers, and multichannel multipoint distribution services, among
others) to choose among three options. First, providers could choose not to transmit
any material defined as indecent under the FCC’s broadcast indecency policies on
any channel on their expanded basic tier between certain hours; second, providers
could choose to scramble any channel, free of charge, that a subscriber does not wish
to receive; or, third, providers could make available a “family tier” of channels that
would consist only of channels that do not transmit indecent programming. This bill
was referred to the House Committee on Energy and Commerce on June 15, 2007.
S. 602, 110th Congress, entitled the Child Safe Viewing Act of 2007, would
encourage the use of advanced blocking technologies. The bill would require the
FCC to examine blocking technologies that could be utilized across various
platforms, including wired, wireless, and Internet, and to consider measures that
would encourage or require the use of these technologies. Advanced blocking
technologies aid parents in denying children access to indecent or objectionable
programming available over broadcast television, cable, Internet, and other media.
117 See additional discussion on page 7, above.
S. 602 was introduced on February 15, 2007, and referred to the Senate
Committee on Commerce, Science, and Transportation.
H.R. 3559 and S. 1780, 110th Congress, entitled the Protecting Children from
Indecent Programming Act, would amend section 16 of the Public
Telecommunications Act of 1992, 47 U.S.C. § 303 note, to require the FCC to
“maintain a policy that a single word or image may constitute indecent
programming.” On December 5, 2007, the Senate Committee on Commerce,
Science, and Transportation reported S. 1780 without amendment (S.Rept. 110-236,
Would Prohibiting the Broadcast of “Indecent” Words
Regardless of Context Violate the First Amendment?
In 1978, in Federal Communications Commission v. Pacifica Foundation, the
Supreme Court upheld, against a First Amendment challenge, an action that the FCC
took against a radio station for broadcasting a recording of George Carlin’s “Filthy118
Words” monologue at 2 p.m. The Court has not decided a case on the issue of
“indecent” speech on broadcast radio or television since then, but it did cite Pacifica
with approval in 1997, when, in Reno v. ACLU, it contrasted regulation of the
broadcast media with regulation of the Internet.119 Nevertheless, the Court in Reno
did not hold that Pacifica remains good law, and arguments have been made that the
proliferation of cable television channels has rendered archaic Pacifica’s denial of
full First Amendment rights to broadcast media.
Even if Pacifica remains valid in this respect, Pacifica did not hold that the First
Amendment permits the ban either of an occasional expletive on broadcast media,
or of programs that would not be likely to attract youthful audiences, even if such
programs contain “indecent” language. On these points, Justice Stevens wrote for
the Court in Pacifica:
It is appropriate, in conclusion, to emphasize the narrowness of our holding.
This case does not involve a two-way radio conversation between a cab driver
and a dispatcher, or a telecast of an Elizabethan comedy. We have not decided
that an occasional expletive in either setting would justify any sanction. . . . The
118 438 U.S. 726 (1978). The FCC’s action was to issue “a declaratory order granting the
complaint,” and “state that the order would be ‘associated with the station’s license file,’”
which means that the FCC could consider it when it came time for the station’s license
renewal. Id. at 730.
119 521 U.S. 844, 868 (1997) (noting that “the history of the extensive regulation of the
broadcast medium” and “the scarcity of available frequencies” are factors “not present in
cyberspace,” and striking down parts of the Communications Decency Act of 1996). The
Court also cited Pacifica with approval in United States v. Playboy Entertainment Group,
Inc., 529 U.S. 803, 813-814 (2000), and in Ashcroft v. Free Speech Coalition, 535 U.S. 234,
time of day was emphasized by the Commission. The content of the program in120
which the language is used will also affect the composition of the audience. . . .
In a footnote to the last sentence of this quotation, the Court added: “Even a
prime-time recitation of Geoffrey Chaucer’s Miller’s Tale would not be likely to121
command the attention of many children. . . .” At the same time, Justice Stevens
acknowledged that the Carlin monologue has political content: “The monologue does
present a point of view; it attempts to show that the words it uses are ‘harmless’ and
that our attitudes toward them are ‘essentially silly.’ The Commission objects,122
[however,] not to this point of view, but to the way in which it is expressed.” The
Court commented: “If there were any reason to believe that the Commission’s
characterization of the Carlin monologue as offensive could be traced to its political
content — or even to the fact that it satirized contemporary attitudes about four-letter123
words — First Amendment protection might be required.”
There appears to be some tension between this comment and the Court’s remark
about Chaucer, as any attempt to censor Chaucer would presumably also be based not
on its ideas but on the way its ideas are expressed. But, as noted above, the Court’s
remark about Chaucer was a footnote to its comment that “[t]he content of the
program in which the language is used will also affect the composition of the
audience. . . .” Therefore, the difference that Justice Stevens apparently perceived
between Chaucer and Carlin was that, even if both have literary, artistic, or political
value, only the latter would be likely to attract a youthful audience. Arguably, then,
Pacifica would permit the censorship, during certain hours, of the broadcast even of
works of art that are likely to attract a youthful audience.124
120 Pacifica, supra, 438 U.S. at 750. A federal court of appeals subsequently held
unconstitutional a federal statute that banned “indecent” broadcasts 24 hours a day, but, in
a later case, the same court upheld the present statute, 47 U.S.C. § 303 note, which bans
“indecent” broadcasts from 6 a.m. to 10 p.m. Action for Children’s Television v. FCC, 932
F.2d 1504 (D.C. Cir. 1991), cert. denied, 503 U.S. 913 (1992); Action for Children’s
Television v. FCC, 58 F.3d 654 (D.C. Cir. 1995) (en banc), cert. denied, 516 U.S. 1043
(1996).
121 Id. at 750, n.29.
122 Id. at 746 n.22. These two sentences and the text accompanying the next footnote,
although part of Justice Stevens’ opinion, are in a part of the opinion (IV-B) joined by only
two other justices. Every other quotation from Pacifica in this report was from a part of the
opinion that a majority of the justices joined.
123 Id. at 746.
124 There also appears to be some tension between, on the one hand, Justice Stevens’
distinction in Pacifica between a point of view and the way in which it is expressed, and,
on the other hand, the Court’s statement in Cohen v. California “that much linguistic
expression serves a dual communicative function: it conveys not only ideas capable of
relatively precise, detached explication, but otherwise inexpressible emotions as well. In
fact, words are often chosen as much for their emotive as their cognitive force. We cannot
sanction the view that the Constitution, while solicitous of the cognitive content of
individual speech, has little or no regard for that emotive function which, practically
speaking, may often be the more important element of the overall message sought to be
(continued...)
If so, this would be contrary to the Court’s opposition, in other contexts, to the
censorship of works of art. The Court has held that even “materials [that] depict or
describe patently offensive ‘hard core’ sexual conduct,” which would otherwise be
obscene, may not be prohibited if they have “serious literary, artistic, political, or
scientific value.”125 In addition, the “harmful to minors” statutes of the sort that the
Supreme Court upheld in Ginsberg v. New York generally define “harmful to minors”
to parallel the Supreme Court’s definition of “obscenity,” and thus prohibit
distributing to minors only material that lacks serious value for minors.126 This
suggests that, if the FCC or Congress prohibited the broadcast during certain hours
of “indecent” words regardless of context, the Court might be troubled by the
prohibition’s application to works with serious value, even though Pacifica allowed
the censorship of Carlin’s monologue, despite its apparently having serious value.
Yet, as noted, Justice Stevens’ expressed a distinction in Pacifica between a
point of view and the way in which it is expressed, and, though a majority of the
justices did not join the part of the opinion that drew this distinction, a majority of
the justices, by concurring in Pacifica’s holding, indicated that the political (or
literary or artistic) content of Carlin’s monologue did not prevent its censorship
during certain hours on broadcast radio and television. Therefore, it appears that, in
deciding the constitutionality of an FCC or a congressional action prohibiting the
broadcasting, during certain hours, of material with “indecent” words, the Court
might be troubled by its application to works with serious value only if those works
would, like Chaucer’s, not likely attract a substantial youthful audience.
In sum, the Court did not hold that the FCC could prohibit an occasional
expletive, and did not hold that the FCC could prohibit offensive words in programs
— even prime-time programs — that children would be unlikely to watch or listen
to. The Court did not hold that the FCC could not take these actions, as the question
whether it could was not before the Court. But the Court’s language quoted above
renders Pacifica of uncertain precedential value in deciding whether a ban, during
certain hours, on the broadcast of “indecent” words regardless of context would be
constitutional.
124 (...continued)
communicated.” 403 U.S. 15, 26 (1971) (upholding the First Amendment right, in the
corridor of a courthouse, to wear a jacket bearing the words “F[***] the Draft”). Arguably,
Carlin’s use of “indecent” words not only served an emotive purpose, but served to indicate
the precise words to whose censorship he was objecting. Yet Pacifica was decided after
Cohen, which suggests that Cohen does not lessen the precedential value of Pacifica.
125 Miller v. California, 413 U.S. 15, 27, 24 (1973). In addition, in striking down parts of
the Communications Decency Act of 1996, the Court expressed concern that the statute may
“extend to discussions about prison rape or safe sexual practices, artistic images that include
nude subjects, and arguably the card catalogue of the Carnegie Library.” Reno v. ACLU,
supra, 521 U.S. at 878. And, in striking down a federal statute that prohibited child
pornography that was produced without the use of an actual child, the Court expressed
concern that the statute “prohibits speech despite its serious literary, artistic, political, or
scientific value.” Ashcroft v. Free Speech Coalition, 535 U.S. 234, 246 (2002). In neither
of these cases, however, did the Court state that its holding turned on the statute’s
application to works of serious value.
126 390 U.S. 629 (1968).
In the “Filthy Words” monologue, as the Supreme Court described it, George
Carlin “began by referring to his thoughts about ‘the words you couldn’t say on the
public, ah, airwaves, um, the ones you definitely wouldn’t say, ever.’ He proceeded
to list those words and repeat them over and over in a variety of colloquialisms.” The
FCC, at the time, used essentially the same standard for “indecent” that it uses today:
“[T]he concept of ‘indecent’ is intimately connected with the exposure of children
to language that describes, in terms patently offensive as measured by contemporary
community standards for the broadcast medium, sexual or excretory activities and
organs. . . .”127
Most of Carlin’s uses of the “filthy words,” it appears from reading his
monologue, which is included as an appendix to the Court’s opinion, seem designed
to show the words’ multiple uses, apart from describing sexual or excretory activities
or organs. Nevertheless, “the Commission concluded that certain words depicted
sexual or excretory activities in a patently offensive manner. . . .”128 Therefore, one
might argue that, even if, under Pacifica, the First Amendment does not protect,
during certain hours, the use on broadcast media of words that depict sexual or
excretory activities in a patently offensive manner, it nevertheless might protect the
use of those same words “as an adjective or expletive to emphasize an exclamation”
(to quote the FCC Enforcement Bureau’s opinion in the Bono case).
A counterargument might be that, in Pacifica, the Court noted that “the normal
definition of ‘indecent’ merely refers to nonconformance with accepted standards of
morality.”129 This suggests the possibility that the Court would have ruled the same
way in Pacifica if the FCC had defined “indecent” loosely enough to include the use
of a patently offensive word “as an adjective or expletive to emphasize an
exclamation.” But this is speculative, as the Court did not so rule. Further, as noted
above, Court emphasized the narrowness of its holding, noting that it had “not
decided that an occasional expletive . . . would justify any sanction. . . .”
On what basis did the Court in Pacifica find that the FCC’s action did not
violate the First Amendment? In Part IV-C of opinion, which was joined by a
majority of the justices, Justice Stevens wrote:
[O]f all forms of communication, it is broadcasting that has received the most
limited First Amendment protection. Thus, although other speakers cannot be
licensed except under laws that carefully define and narrow official discretion,
a broadcaster may be deprived of his license and his forum if the Commission
decides that such an action would serve “the public interest, convenience, and
necessity.” Similarly, although the First Amendment protects newspaper
publishers from being required to print the replies of those whom they criticize,
Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, it affords no such
protection to broadcasters; on the contrary, they must give free time to the
victims of their criticism. Red Lion Broadcasting Co. v. FCC, 395 U.S. 367.
127 Pacifica, supra, 438 U.S. at 731-732.
128 Id. at 732 (distinguishing “indecent” from “obscene” and “profane” in 18 U.S.C. § 1464).
129 Id. at 740.
The reasons for these distinctions are complex, but two have relevance to the
present case. First, the broadcast media have established a uniquely pervasive
presence in the lives of all Americans. Patently offensive, indecent material
presented over the airwaves confronts the citizen, not only in public, but in the
privacy of the home, where the individual’s right to be left alone plainly
outweighs the First Amendment rights of an intruder. Rowan v. Post Office
Dept., 397 U.S. 728. . . . To say that one may avoid further offense by turning
off the radio when he hears indecent language is like saying that the remedy for
an assault is to run away after the first blow.
Second, broadcasting is uniquely accessible to children, even those too young to
read. . . . Bookstores and motion picture theaters . . . may be prohibited from
making indecent material available to children. We held in Ginsberg v. New
York, 390 U.S. 629, that the government’s interest in the “well-being of its
youth” and in supporting “parents’ claim to authority in their own household”130
justified the regulation of otherwise protected expression. . . .
In sum, the Court held that, on broadcast radio and television, during certain
times of day, certain material may be prohibited because (1) it is patently offensive
and indecent, and (2) it threatens the well-being of minors and their parents’ authority
in their own household. This raises the question of the extent to which the Court
continues to allow the government (1) to treat broadcast media differently from other
media, and (2) to censor speech on the ground that it is patently offensive and
indecent, or threatens the well-being of minors and their parents’ authority in their
own household.
Broadcast Media. In Red Lion Broadcasting Co. v. FCC, which the Court
cited in the above quotation from Pacifica, the Court upheld the FCC’s “fairness
doctrine,” which “imposed on radio and television broadcasters the requirement that
discussion of public issues be presented on broadcast stations, and that each side of131
those issues must be given fair coverage.” The reason that the Court upheld the
imposition of the fairness doctrine on broadcast media, though it would not uphold
its imposition on print media, is that “[w]here there are substantially more individuals
who want to broadcast than there are frequencies to allocate, it is idle to posit an
unabridgeable First Amendment right to broadcast comparable to the right of every
individual to speak, write, or publish.”132 “Licenses to broadcast,” the Court added,
“do not confer ownership of designated frequencies, but only the temporary privilege
of using them. 47 U.S.C. § 301. Unless renewed, they expire within three years. 47
U.S.C. § 307(d). The statute mandates the issuance of licenses if the ‘public
convenience, interest, or necessity will be served thereby.’ 47 U.S.C. § 307(a).”133
The Court in Red Lion then noted:
130 Id. at 748-750.
131 395 U.S. 367, 369 (1969).
132 Id. at 388.
133 Id. at 394.
It is argued that even if at one time the lack of available frequencies for all who
wished to use them justified the Government’s choice of those who would best
serve the public interest . . . this condition no longer prevails so that continuing
control is not justified. To this there are several answers. Scarcity is not entirely134
a thing of the past.
With the plethora of cable channels today, has spectrum scarcity now become
a thing of the past? In Turner Broadcasting System, Inc. v. FCC, the Court held that
the scarcity rationale does not apply to cable television:
[C]able television does not suffer from the inherent limitations that characterize
the broadcast medium . . . [S]oon there may be no practical limitation on the
number of speakers who may use the cable medium. Nor is there any danger of
physical interference between two cable speakers attempting to use the same
channel. In light of these fundamental technological differences between
broadcast and cable transmission, application of a more relaxed standard of
scrutiny adopted in Red Lion and the other broadcast cases is inapt when
determining the First Amendment validity of cable regulation.”135
One might argue that, if the scarcity rationale does not apply to cable television,
then it should not apply to broadcast television either, because a person who because136
of scarcity cannot start a broadcast channel can start a cable channel. But the Court
has not ruled on the question; in Turner it wrote: “Although courts and commentators
have criticized the scarcity rationale since its inception, we have declined to question
its continuing validity as support for our broadcast jurisprudence, and see no reason137
to do so here.”
In 1987, however, the FCC abolished the fairness doctrine, on First Amendment
grounds, noting that technological developments and advancements in the
telecommunications marketplace have provided a basis for the Supreme Court to
reconsider its holding in Red Lion. The FCC’s decision was upheld by the U.S.
Court of Appeals for the District of Columbia, and the Supreme Court declined to
review the case.138 The court of appeals did not rule on constitutional grounds, but
rather concluded “that the FCC’s decision that the fairness doctrine no longer served
134 Id. at 396.
135 512 U.S. 622, 639 (1994). In Turner, the Court held that the “must carry” rules, which
“require cable television systems to devote a portion of their channels to the transmission
of local broadcast television stations,” id. at 626, were content-neutral and therefore not
subject to strict scrutiny. The Court remanded and ultimately upheld the rules. Turner
Broadcasting System, Inc., 520 U.S. 180 (1997).
136 In the court of appeals decision upholding the current statute that bans “indecent”
broadcasts from 6 a.m. to 10 p.m., a dissenting judge wrote of “the utterly irrational
distinction that Congress has created between broadcast and cable operators. No one
disputes that cable exhibits more and worse indecency than does broadcast. And cable
television is certainly pervasive in our country.” Action for Children’s Television v. FCC,
supra, 58 F.3d at 671 (emphasis in original) (Edwards, C.J., dissenting).
137 512 U.S. at 638 (citation omitted).
138 Syracuse Peace Council v. FCC, 867 F.2d 654 (D.C. Cir. 1989), cert. denied, 493 U.S.
the public interest was neither arbitrary, capricious nor an abuse of discretion, and
[we] are convinced that it would have acted on that finding to terminate the doctrine
even in the absence of its belief that the doctrine was no longer constitutional.”139
But, whether or not spectrum scarcity has become a thing of the past, it would
apparently would not today justify governmental restrictions on “indecent” speech.
This is because, subsequent to the Court in Turner declining to question the
applicability of the scarcity rationale to broadcast media, a plurality of justices noted,
in Denver Area Educational Telecommunications Consortium, Inc. v. FCC, that,
though spectrum scarcity continued to justify the “structural regulations at issue there
[in Turner] (the ‘must carry’ rules), it has little to do with a case that involves the
effects of television viewing on children. Those effects are the result of how parents
and children view television programming, and how pervasive and intrusive that
programming is. In that respect, cable and broadcast television differ little, if at
all.”140 The plurality therefore upheld a federal statute that permits cable operators
to prohibit indecent material on leased access channels. Thus, it appears that the
Court today would not cite spectrum scarcity to justify restrictions on “indecent”
material on broadcast media, but it might cite broadcast media’s pervasiveness and
intrusiveness.
Subsequent to Denver Area, in United States v. Playboy Entertainment Group,
Inc., the Court held that cable television has full First Amendment protection; i.e.,
content-based restrictions on cable television receive strict scrutiny.141 Thus, if, as
the Court said in Denver Area, cable and broadcast media differ little, if at all, with
respect to the regulation of “indecent” material, and, if, as the Court said in Playboy,
cable television receives strict scrutiny, then, arguably, broadcast media would also
receive strict scrutiny with regard to restrictions on “indecent” material.142 It is
139 Id. at 669. In Arkansas AFL-CIO v. FCC, 11 F.3d 1430 (8th Cir. 1993) (en banc), the
court of appeals held that Congress had not codified the fairness doctrine and that the FCC’s
decision to eliminate it was a reasonable interpretation of the statutory requirement that
licensees operate in the public interest.
140 518 U.S. 727, 748 (1996). The plurality added that cable television “is as ‘accessible to
children’ as over-the-air broadcasting, if not more so,” has also “established a uniquely
pervasive presence in the lives of all Americans,” and can also “‘confron[t] the citizen’ in
‘the privacy of the home,’ . . . with little or no prior warning.” Id. at 744-745. Justice
Souter concurred that “today’s plurality opinion rightly observes that the characteristics of
broadcast radio that rendered indecency particularly threatening in Pacifica, that is, its
intrusion into the house and accessibility to children, are also present in the case of cable
television. . . .” Id. at 776.
141 529 U.S. 803, 813 (2000) (striking down a federal statute that required distributors to
fully scramble or fully block signal bleed to non-subscribers to cable channels; “signal
bleed” refers to the audio or visual portions of cable television programs that non-
subscribers to a cable channel may be able to hear or see despite the fact that the programs
have been scrambled to prevent the non-subscribers from hearing or seeing them).
142 An earlier district court case held that Pacifica does not apply to cable television because
of several differences between cable and broadcasting. For one, “[i]n the cable medium, the
physical scarcity that justifies content regulation in broadcasting is not present.” For
another, as a subscriber medium, “cable TV is not an intruder but an invitee whose
(continued...)
possible, however, that, if cable and broadcast media differ little, then the Court
might apply Pacifica to both broadcast and cable, rather than to neither.143 In any
event, as noted above, even if the Court were to continue to apply Pacifica to
restrictions on broadcast media, this does not necessarily mean that it would uphold
a ban on the broadcast of “indecent” language regardless of context, as Pacifica did
not hold that an occasional expletive would justify a sanction.
Strict Scrutiny. We now consider the analysis that the Court might apply if
it chooses not to apply Pacifica in deciding the constitutionality of a ban on the
broadcast of “indecent” language regardless of context. The Court in Pacifica, as
noted, offered two reasons why the FCC could prohibit offensive speech on broadcast
media: “First, the broadcast media have established a uniquely pervasive presence in
the lives of all Americans. Patently offensive, indecent material presented over the
airwaves confronts the citizen, not only in public, but in the privacy of the home. . . .
Second, broadcasting is uniquely accessible to children, even those too young to
read,” and the government has an interest in the “well-being of its youth”and “in
supporting ‘parents’ claim to authority in their own household.’” The first of these
reasons apparently refers to adults as well as to children.
Ordinarily, when the government restricts speech, including “indecent” speech,
on the basis of its content, the restriction, if challenged, will be found constitutional
only if it satisfies “strict scrutiny.”144 This means that the government must prove
that the restriction serves “to promote a compelling interest” and is “the least
restrictive means to further the articulated interest.”145 The Court in Pacifica did not
apply this test or any weaker First Amendment test, and did not explain why it did
not. Its reason presumably was that the FCC’s action restricted speech only on
broadcast media. If, however, the Court were not to apply Pacifica in determining
the constitutionality of a ban, during certain hours, on the broadcast of “indecent”
language regardless of context, then it would apparently apply strict scrutiny.
If the Court were to apply strict scrutiny in making this determination, it seems
unlikely that it would find the first reason cited in Pacifica — sparing citizens,
including adults, from patently offensive or indecent words — to constitute a
142 (...continued)
invitation can be carefully circumscribed.” Community Television v. Wilkinson, 611 F.th
Supp. 1099 (D. Utah 1985), aff’d, 800 F.2d 989 (10 Cir. 1986), aff’d, 480 U.S. 926 (1987)
(striking down Utah Cable Television Programming Decency Act). The court of appeals did
not discuss the constitutional issue beyond stating that it agreed with the district court’s
reasons for its holding. 800 F.2d at 991. A summary affirmance by the Supreme Court, as
in this case, is “an affirmance of the judgment only,” and does not indicate approval of the
reasoning of the court below. Mandel v. Bradley, 432 U.S. 173, 176 (1977).
143 See CRS Report RL33170, Constitutionality of Applying the FCC’s Indecency
Restriction to Cable Television, by Henry Cohen, which concludes that “it appears likely
that a court would find that to apply the FCC’s indecency restriction to cable television
would be unconstitutional.”
144 Sable Communications of California v. Federal Communications Commission, 492 U.S.
145 Id. at 126.
compelling governmental interest. The Court has held that the government may not
prohibit the use of offensive words unless they “fall within [a] relatively few
categories of instances,” such as obscenity, fighting words, or words “thrust upon
unwilling or unsuspecting viewers.”146
If the Court were to apply strict scrutiny in determining the constitutionality of
a ban, during certain hours, on the broadcast of “indecent” language regardless of
context, it also might not find the second reason cited in Pacifica — protecting
minors from patently offensive and indecent words and “supporting ‘parents’ claim
to authority in their own household’” — to constitute a compelling governmental
interest. When the Court considers the constitutionality of a restriction on speech,
it ordinarily — even when the speech lacks full First Amendment protection and the
court applies less than strict scrutiny — requires the government to “demonstrate that
the recited harms are real, not merely conjectural, and that the regulation will in fact
alleviate these harms in a direct and material way.”147 With respect to restrictions
designed to deny minors access to sexually explicit material, by contrast, the courts
appear to assume, without requiring evidence, that such material is harmful to
minors, or to consider it “obscene as to minors,” even if it is not obscene as to adults,
and therefore not entitled to First Amendment protection with respect to minors,
whether it is harmful to them or not.148 A word used as a mere adjective or expletive,
146 Cohen v. California, supra, 403 U.S. at 19, 21. Under Pacifica, broadcast media do
thrust words upon unwilling or unsuspecting viewers, but, if a court were to apply strict
scrutiny to a ban on the broadcast of “indecent” language regardless of context, then it
would not be following Pacifica.
147 Turner Broadcasting, supra, 512 U.S. at 664 (incidental restriction on speech). See also,
Edenfield v. Fane, 507 U.S. 761, 770-771 (1993) (restriction on commercial speech); Nixon
v. Shrink Missouri Government PAC, 528 U.S. 377, 392 (2000) (restriction on campaign
contributions). In all three of these cases, the government had restricted less-than-fully
protected speech, so the Court did not apply strict scrutiny. Because offensive words are
apparently entitled to full First Amendment protection (except under Pacifica and in the
instances cited in Cohen v. California, quoted in the text above), it seems all the more likely
that the Court, if it applied strict scrutiny instead of Pacifica to a challenge to a ban on the
broadcast of “indecent” words regardless of context, would require the government to
demonstrate that harms it recites are real and that the ban would alleviate these harms in a
direct and material way.
148 Interactive Digital Software Association v. St. Louis County, Missouri, 329 F.3d 954, 959
(8th Cir. 2003). The Supreme Court has “recognized that there is a compelling interest in
protecting the physical and psychological well-being of minors. This interest extends to
shielding minors from the influence of literature that is not obscene by adult standards.”
Sable, supra, 492 U.S. at 126. The Court has also upheld a state law banning the
distribution to minors of “so-called ‘girlie’ magazines” even as it acknowledged that “[i]t
is very doubtful that this finding [that such magazines are “a basic factor in impairing the
ethical and moral development of our youth”] expresses an accepted scientific fact.”
Ginsberg v. New York, supra, 390 U.S. at 631, 641. “To sustain state power to exclude
[such material from minors],” the Court wrote, “requires only that we be able to say that it
was not irrational for the legislature to find that exposure to material condemned by the
statute is harmful to minors.” Id. at 641. Ginsberg thus “invokes the much less exacting
‘rational basis’ standard of review,” rather than strict scrutiny. Interactive Digital Software
Association, supra, 329 F.3d at 959.
(continued...)
however, arguably does not constitute sexually oriented material.149 Therefore, if a
court applied strict scrutiny to decide the constitutionality of a ban, during certain
hours, on the broadcast of “indecent” words regardless of context, then, in
determining the presence of a compelling interest, the court might require the
government to “demonstrate that the recited harms are real, not merely conjectural,
and that the regulation will in fact alleviate these harms in a direct and material way.”
This could raise the question, not raised in Pacifica, of whether hearing such words
is harmful to minors. More precisely, it might raise the question of whether hearing
such words on broadcast radio and television is harmful to minors, even in light of
the opportunities for minors to hear such words elsewhere. If the government failed
to prove that hearing certain words on broadcast radio or television is harmful to
minors, then a court would not find a compelling interest in censoring those words
and might strike down the law.
It might still uphold the law, however, if it found that the law served the
government’s interest “in supporting ‘parents’ claim to authority in their own
household,’” and that this is a compelling interest independent from the interest in
148 (...continued)
A federal district court wrote:
We are troubled by the absence of evidence of harm presented both before
Congress and before us that the viewing of signal bleed of sexually explicit
programming causes harm to children and that the avoidance of this harm can be
recognized as a compelling State interest. We recognize that the Supreme
Court’s jurisprudence does not require empirical evidence. Only some minimal
amount of evidence is required when sexually explicit programming and children
are involved.
Playboy Entertainment Group, Inc. v. United States, 30 F. Supp.2d 702, 716 (D. Del. 1998),
aff’d, 529 U.S. 803 (2000). The district court therefore found that the statute served a
compelling governmental interest, though it held it unconstitutional because it found that
the statute did not constitute the least restrictive means to advance the interest. The
Supreme Court affirmed on the same ground, apparently assuming the existence of a
compelling governmental interest, but finding a less restrictive means that could have been
used.
In another case, a federal court of appeals, upholding the current statute that bans
“indecent” broadcasts from 6 a.m. to 10 p.m., noted “that the Supreme Court has recognized
that the Government’s interest in protecting children extends beyond shielding them from
physical and psychological harm. The statute that the Court found constitutional in
Ginsberg sought to protect children from exposure to materials that would ‘impair [their]
ethical and moral development. . . . Congress does not need the testimony of psychiatrists
and social scientists in order to take note of the coarsening of impressionable minds that can
result from a persistent exposure to sexually explicit material. . . .’” Action for Children’s
Television v. FCC, supra, 58 F.3d at 662 (brackets and italics supplied by the court). A
dissenting judge in the case noted that, “[t]here is not one iota of evidence in the record . . .
to support the claim that exposure to indecency is harmful — indeed, the nature of the
alleged ‘harm’ is never explained.” Id. at 671 (D.C. Cir. 1995) (Edwards, C.J., dissenting).
149 The full Commission’s decision in the Bono case stated that “any use of that word or a
variation, in any context, inherently has a sexual connotation.” But this does not necessarily
mean that it is sexually oriented enough to cause the courts to assume without evidence that
it is harmful to minors.
protecting the well-being of minors. In Ginsberg v. New York, the Court referred to
the state’s interest in the well-being of its youth as “independent” from its interest in
supporting “parents’ claim to authority in their own household to direct the rearing
of their children.”150 The holding in Ginsberg, however, did not turn on whether
these interests are independent, and one might argue that they are not, because the
government’s interest in supporting parents lies in assisting them in protecting their
children from harmful influences. If “indecent” words are not a harmful influence,
then, arguably, the government has no interest, sufficient to override the First
Amendment, in supporting parents in their efforts to prevent their children’s access
to them. It has also been argued that “a law that effectively bans all indecent
programming . . . does not facilitate parental supervision. In my view, my right as
a parent has been preempted, not facilitated, if I am told that certain programming
will be banned from my . . . television. Congress cannot take away my right to
decide what my children watch, absent some showing that my children are in fact at
risk of harm from exposure to indecent programming.”151
If the government could persuade a court that a ban, during certain hours, on the
broadcast of “indecent” words regardless of context serves a compelling interest —
either in protecting the well-being of minors or in supporting parents’ claim to
authority — the government would then have to prove that the ban was the least
restrictive means to advance that interest. This might raise questions such as whether
it is necessary to prohibit particular words on weekdays during school hours, solely
to protect pre-school children and children who are home sick some days. In
response to this question, the government could note that the broadcast in Pacifica
was at 2 p.m. on a Tuesday, but was nevertheless considered a “time[ ] of the day
when there is a reasonable risk that children may be in the audience.”152 More
significantly, however, a court might find a ban too restrictive because it would
prohibit the broadcast, between certain hours, of material, including works of art and
other material with serious value, that would not attract substantial numbers of
youthful viewers or listeners.
In conclusion, it appears that, if a court were to apply strict scrutiny to determine
the constitutionality of a ban on the broadcast of “indecent” language regardless of
context, then it might require the government to “demonstrate that the recited harms
are real, not merely conjectural, and that the regulation will in fact alleviate these
harms in a direct and material way.” This would mean that the government would
have to demonstrate a compelling governmental interest, such as that hearing
“indecent” words on broadcast radio and television is harmful to minors, despite the
likelihood that minors hear such words elsewhere, or that banning “indecent” words
is necessary to support parents’ authority in their own household. If the government
could not demonstrate a compelling governmental interest, then the court might find
the ban unconstitutional. Even if the government could demonstrate a compelling
interest, a court might find the ban unconstitutional if it applied to material with
150 Ginsberg, supra, 390 at 640, 639. See also, Action for Children’s Television v. FCC,
supra, 58 F.3d at 661.
151 Action for Children’s Television v. FCC, supra, 58 F.3d at 670 (emphasis in original)
(Edwards, C.J., dissenting).
152 Pacifica, supra, 438 U.S. at 732.
serious value, at least if such material would not attract substantial numbers of
youthful viewers or listeners.
Whether a court would apply strict scrutiny would depend upon whether, in light
of the proliferation of cable television, it finds Pacifica to remain applicable to
broadcast media. If a court does find that Pacifica remains applicable to broadcast
media, then the court would be faced with questions that Pacifica did not decide:
whether, on broadcast radio and television during hours when children are likely to
be in the audience, the government may prohibit an “indecent” word used as an
occasional expletive, or in material that would not attract substantial numbers of
youthful viewers or listeners.
Second Circuit’s dicta in Fox Television Stations, Inc. v. FCC. As
noted at pages 16-18 of this report, on June 4, 2007, the Second Circuit, in a 2-1
decision, found “that the FCC’s new policy regarding ‘fleeting expletives’ represents
a significant departure from positions previously taken by the agency and relied on
by the broadcast industry. We further find that the FCC has failed to articulate a
reasoned basis for this change in policy. Accordingly, we hold that the FCC’s new
policy regarding ‘fleeting expletives’ is arbitrary and capricious under the
Administrative Procedure Act.”153 As also noted above, the Second Circuit, having
overturned the FCC policy on statutory grounds, had no occasion to decide whether
it also violated the First Amendment. In dicta, however, it explained why it was
“skeptical that the Commission can provide a reasonable explanation for its ‘fleeting
expletive’ regime that would pass constitutional muster.’”
The court wrote that it was
sympathetic to the Networks’ contention that the FCC’s indecency test is
undefined, indiscernible, inconsistent, and consequently, unconstitutionally
vague. . . . We also note that the FCC’s indecency test raises the separate
constitutional question of whether it permits the FCC to sanction speech based
on its subjective view of the merit of that speech. It appears that under the
FCC’s current indecency regime, any and all uses of an expletive is
presumptively indecent and profane with the broadcaster then having to
demonstrate to the satisfaction of the Commission, under an unidentified burden
of proof, that the expletives were “integral” to the work. In the licensing context,
the Supreme Court has cautioned against speech regulations that give too much
discretion to government officials. . . . Finally, we recognize that there is some
tension in the law regarding the appropriate level of First Amendment scrutiny.
In general, restrictions on First Amendment liberties prompt courts to apply strict
scrutiny. . . . At the same time, however, the Supreme Court has also considered
broadcast media exceptional. . . . Nevertheless, we would be remiss not to
observe that it is increasingly difficult to describe the broadcast media as
uniquely pervasive and uniquely accessible to children, and at some point in the
future, strict scrutiny may properly apply in the context of regulating broadcast154
television.
153 Fox Television Stations, supra note 98, 489 F.3d at 447.
154 Id. at 463-465.