Are Indecency Regulations Obsolete?

The Authority to Regulate Indecency

Broadcasting is an area where the government has a greater interest in regulating indecent speech than in other media. In FCC v. Pacifica Foundation, the Supreme Court upheld the Commission’s authority to prohibit indecent speech in the broadcast media and to punish broadcast licensees who air indecency. Two unique characteristics of broadcast allow the FCC to regulate indecent speech broadcasts, “pervasive presence” in the airwaves and its “unique accessibility” to children. These characteristics were balanced against the idea that indecent speech falls “at the periphery of First Amendment concerns.”
Protecting children from inadvertent exposure to indecent speech represented the sort of interest that would allow the regulation of broadcast indecency. Both “the content and context of speech” are “critical elements” of the First Amendment analysis. Broadcast represents a pervasive presence in the household. The Court based its reasoning on a nuisance rationale under which “context is all-important.” Among the factors to be considered include the time of day of the broadcast, and how the content of the program will affect the composition of the audience. In contrast, the Supreme Court declined to extend the authority to regulate indecency to cable television and the internet because these media are not so pervasive. Citizens must make a conscious choice to subscribe to cable or to visit an internet location, while broadcast television permeates the airwaves and requires no subscription to view.
Because it is possible to prevent minors from accessing indecency on cable television, the internet, and for telephony, the Court has applied strict scrutiny and struck down regulations on indecent speech in those media. These media lack the same sort of pervasive push into the home as broadcast and must be evaluated under strict scrutiny. The availability of channel-blocking or internet filtering technology provides a “feasible and effective means” of furthering its compelling interests, which is less restrictive to speech than a ban based on time-channeling. Filtering and blocking make it possible to exclude certain individuals from access. Justice Powell noted that broadcast lacked that power to exclude a discrete part of its audience and must rely on time channeling to achieve similar results, where protected speech is available, but not readily accessible to minors.
Even with broadcast, an outright ban on indecency is impermissible under the First Amendment. Action for Children’s Television v. FCC. However, in order to target regulations of indecency to the times when children would be watching television or listening to the radio, a “time-channeling” approach is a “narrowly-tailored” regulation. A prohibition on indecent broadcasts outside of a 10 P.M. to 6 AM “safe harbor,” was found to be an acceptable balance of the First Amendment interests of adults with the public interest in preventing the broadcast of indecent speech to children. While other media are not regulated for indecency, the D.C. Circuit continued to single out broadcast for unique treatment, allowing that “radio and television broadcasts may properly be subject to different– and often more restrictive– regulation than is permissible for other media under the First Amendment.” Broadcast remains an anomaly within the Court’s First Amendment jurisprudence as the only field where government regulation of indecent, rather than obscene, speech is tolerated.
As part of its delegated authority to regulate broadcasting, the FCC has the specific authority to regulate the broadcast of “obscene, indecent, or profane language.” The FCC’s authority to regulate indecency relies on the statutory authority in 18 USC §1464, which criminalizes the broadcast of “obscene, indecent, or profane language by means of radio communication.”
The FCC Regulations prohibit licensees from broadcasting obscene material at all times and from broadcasting indecent material during the “safe harbor” period between 6 a.m. and 10 p.m. 47 C.F.R. §73.3999. In order to qualify as indecent, material must describe or depict sexual or excretory organs or activities and the broadcast must be patently offensive as measured by contemporary community standards for the broadcast medium.

Does technology obsolete indecency regulations?

In Pacifica, the Court justified regulating indecency on broadcast because of the unique characteristics of the broadcast medium, its “pervasive presence” in the airwaves and its “unique accessibility” to children. Today, however, the technological and media environment is sufficiently different that these circumstances may not justify limiting indecent speech on broadcast more than on cable television, satellite television, satellite radio, or the internet.
Nearly 90% of all households in the US have access to television through cable or satellite. For the vast majority of Americans, broadcast stations are just part of the televised content available. Cable and Satellite are not subject to indecency regulation because they are subscription services (one is less likely to unwittingly experience an indecent cablecast in their house than an indecent broadcast) and because they allow subscribers to filter out channels showing indecent content.
The V-chip allows television viewers to filter out content that may be indecent. Section 551 of the Telecommunications Act of 1996 encouraged the broadcast and cable industry to “establish voluntary rules for rating programming that contains sexual, violent or other indecent material about which parents should be informed before it is displayed to children,” and to voluntarily broadcast signals containing these ratings. Televisions equipped with the v-chip allow parents to block undesirable programming at the time it enters the home.
All televisions sold in the US since Jan. 1, 2000 are equipped with the V-chip. Initially, parents were enthusiastic about the prospect of the v-chip. A 1999 Kaiser family foundation survey found that 77% of parents surveyed would use the v-chip to block shows they didn’t want their children to watch. Yet, in 2004, usage of the V-chip stands at fewer than 15% of households, even though 74% have a v-chip equipped television. Researchers from the Annenberg Public Policy Center gave V-chip equipped television sets to families in Philadelphia and instructed the families on how to use the v-chip. After one year, only 30% of the families ever tried using the V-chip and only 8% of the families used the blocking feature regularly.
The FCC is preparing to transition broadcast television from conventional analog television to new digital technology sometime during the 21st century. DTV transition requires new sets or digital tuner converter equipment that will have the V-chip. At that point, all televisions capable of receiving broadcast television will have the V-chip and it will be as easy to filter broadcast television, as it is to filter cable television. Additionally, digital multicasting will ameliorate spectrum scarcity and allow broadcasters to increase the number of channels of content. Multicasting will also allow broadcasters to offer detailed metadata about the programs on subchannels. This data may include detailed information about potentially indecent content.
These new technological developments in broadcast offer arguments that the the special circumstances that justify regulating broadcast indecency may no longer exist.
In the 2004 Super Bowl Halftime Show Forfeiture Order, the Commission notes that the Supreme Court “expressly recognized in Reno the ‘special justifications for regulation of the broadcast media.'” The Commission finds that the availability of the V-Chip does not change the need for broadcast indecency regulations, because the V-chip “cannot be utilized to block sporting events such as the Super Bowl because sporting events are not rated.” In a footnote, the Commission agrees that the V-chip is an important protection outside the context of exempt programming, “but it does not eliminate the need for enforcing [the] indecency rule or undermine the constitutionality of that rule.”
However, the mere fact that sports and commercials are unrated under the V-chip scheme might not protect broadcast indecency regulations. Wouldn’t the least restrictive means of regulating speech be to require that commercials and sports programming are rated by the V-chip and then letting individual parents decide what programming can enter their houses?
If a court can find that sufficient safeguards exist to protect children from indecent content on broadcast television, then the First Amendment may prohibit indecency regulation. However, broadcasters may always be subject to greater obligations than cable and internet video distributors. Under the “public trustee” model of spectrum rights, broadcasters do obtain a broadcast licensee and the rights to valuable spectrum from the public and should have some obligation to serve the public. The safe harbor does serve a public policy by making a pragmatic decision to offer parents a set of “safe” channels that children can watch without concerns about indecency.