Can you say that on TV?': An Examination of the FCC's Enforcement with Respect to Broadcast Indecency.

Subcommittee on Telecommunications and the Internet
January 28, 2004
10:30 AM
2123 Rayburn House Office Building 

Mr. Robert Corn-Revere
Partner
Davis Wright Tremaine LLP
1500 K Street NW, Suite 450
Washington, DC, 20005-1272

Mr. Chairman, and Members of the Committee.  Thank you for inviting me to testify about Federal Communications Commission (“FCC”) enforcement of the broadcast indecency standard.[1]   I will address some of the constitutional issues that arise from the FCC’s regulation of broadcast content, and will explore the potential implications of changes in the Commission’s approach to indecency.  Based on my analysis, I suggest that any changes in the policy should be accompanied by a comprehensive rulemaking proceeding that examines fully the First Amendment implications of the FCC’s rules.  Such review should take place regardless of whether changes are initiated at the FCC or directed by Congress.

I. Recent Developments With Enforcement of the FCC’s Indecency Policy

The FCC and the enforcement of its indecency rules has received a great deal of attention lately.  Much of it – though by no means all – centers on a recent staff decision declining to impose a penalty on broadcast of one particular expletive[2] during a live broadcast of the Golden Globe Awards last January.[3]  That decision currently is under review by the full Commission, and Chairman Powell has stated publicly that he intends for the agency to overrule the Bureau order.[4]  According to press reports, the Chairman proposed a rule “that would nearly guarantee an FCC fine if [the profanity is] uttered between 6 a.m. and 10 p.m. on radio and broadcast television.”   One possible exception to a per se indecency rule would be when a profane word is uttered “in a political situation.”[5]  Other Commissioners have expressed similar views,[6] as have various members of Congress.[7]

Much of the adverse reaction to the staff Golden Globes Order centers on its observation that the word “‘f**king’ may be crude and offensive, but, in the context presented here,” may not be actionably indecent when used “as an adjective or expletive to emphasize an exclamation.” [8]  In a less discussed part of the Order, however, the Bureau also found that “fleeting and isolated remarks of this nature do not warrant Commission action,”[9] a proposition for which there is ample precedent.[10]  In fact, the initial FCC orders that preceeded Supreme Court review in FCC v. Pacifica Foundation, 438 U.S. 726 (1978) stressed that it would be inequitable to hold a licensee responsible for indecent language when “public events likely to produce offensive speech are covered live, and there is no opportunity for journalistic editing.” [11]  Justice Powell, who supplied the crucial swing vote for Pacifica’s slim majority, stressed that “[t]he Commission’s holding, and certainly the Court’s holding today, does not speak to cases involving the isolated use of a potentially offensive word.”[12]  But whether or not the Golden Globes Order is defensible on other grounds, it may be fairly safe to assume given the present climate that the days of the Bureau decision are numbered.

The official responses spawned by the current controversy would seem to ensure this outcome.  Both the House of Representatives and the Senate introduced resolutions condemning the Golden Globes Order, and have urged the FCC generally to take a more activist role in indecency enforcement.[13]  In addition, Congressman Ose introduced H.R. 3687 to address directly the Bureau’s reasoning regarding the contextual use of expletives.  It proposes to amend 18 U.S.C. § 1464 to specify that the term “‘profane’, used with respect to language, includes the words ‘sh*t’, ‘pi*s’, ‘f**k’, ‘cu*t’, ‘a**hole’, and the phrases ‘c**k sucker’, ‘mother f**ker’, and ‘a** hole’, compound use (including hyphenated compounds) of such words and phrases with each other or with other words and phrases, and other grammatical forms of such words and phrases (including verb, adjective, gerund, participle, and infinitive forms).”[14]   

Chairman Upton also has urged the Commission to reverse the Golden Globes Order and on January 21 introduced H.R. 3717 to increase substantially the financial penalties the Commission may impose for violations of its indecency rules.[15]  Chairman Powell has endorsed the imposition of vastly higher fines, and has called for a ten-fold increase in forfeiture levels in order to create more of a deterrent effect on broadcast programmers.[16]  These actions have come after the Commission announced its intention to impose a number of significant fines under existing rules, and the agency has threatened to revoke the licenses of broadcasters who commit “serious violations” of the indecency policy. [17]

II. Any Change in the FCC’s Indecency Policy Requires a Comprehensive Constitutional Review of the Rules

 Whatever course the FCC and Congress may take in this area, neither body can avoid the need for thorough constitutional scrutiny of its actions.  It is insufficient simply to note that the Supreme Court upheld the FCC in an indecency action a quarter century ago in FCC v. Pacifica Foundation, 438 U.S. 726 (1978) given the intervening changes in the law, technology, and in society.  Thus far, however, the FCC has resisted any such review.[18]  But as Chairman (then Commissioner) Powell has said, “as government pushes the limits of its authority to regulate the content of speech, the more its actions should be constitutionally scrutinized, not less.”  He previously has stressed that “any responsible government official who has taken an oath to support and defend the Constitution must squarely addess this important question.”[19]  In this regard, the United States Court of Appeals for the District of Columbia Circuit has reminded the FCC Commissioners that “[f]ederal officials are not only bound by the Constitution, they must also take a specific oath to support and defend it.”[20]   Accordingly, Chairman Powell has said that he tries to answer a series of questions before taking regulatory actions in order to “execute this haughty responsibility without feeling [the] decisions are the result of nothing more than . . . personal preferences or the skillful lobbying efforts of the most effective special interest groups or politicians.”  The final, and most important question he asks is, “Would any action we take violate the Constitution?” [21]

With respect to regulating broadcast content, Chairman Powell has criticized as a “willful denial of reality” the Commission’s failure to reexamine the “demonstrably faulty premises for broadcast regulation,” including the claim “that broadcasting is uniquely intrusive as a basis for restricting speech.”  Of this rationale he has said, “[t]he TV set attached to rabbit ears is no more an intruder into the home than cable, DBS, or newspapers for that matter.  Most Americans are willing to bring TVs into their living rooms with no illusion as to what they will get when they turn them on.”[22]  The Chairman has explained that “[t]echnology has evaporated any meaningful distinctions among distribution [media], making it unsustainable for the courts to segregate broadcasting from other [media] for First Amendment purposes.  It is just fantastic to maintain that the First Amendment changes as you click through the channels on your television set.”[23] 

Yet the FCC’s reluctance to address these basic issues led Commissioner Powell to observe that “the government has been engaged for too long in willful denial in order to subvert the Constitution so that it can impose its speech preferences on the public – exactly the sort of infringement of individual freedom the Constitution was masterfully designed to prevent.” [24]  As Chairman, Powell has said that he is hesitant to second-guess the choices made by members of the broadcast audience and has noted that “I don’t want the government as my nanny.”  And while acknowledging that some programming content makes him anxious, he has stated “I don’t get paid to write general anxiety rules.  I get paid to write specific ones that have sufficient clarity to sustain judicial review as not being arbitrary and capricious and not just an expression of my preference.” [25]

This is not intended to suggest that the Chairman would reaffirm these prior statements in a formal proceeding, nor is it an attempt to predict how a Commission majority might act.  Rather, the point is that the government has a constitutional obligation to address these significant First Amendment issues to the extent it modifies or reaffirms its indecency enforcement policy.  The same constitutional duty applies regardless whether Congress or the FCC takes the lead in this area. [26]  As I explain in the following sections, the Commission’s existing approach to indecency enforcement is fraught with constitutional difficulties, and any effort to increase enforcement efforts, raise the level of fines, or to specify a per se indecency rule will make these problems even more pressing.  I have not been asked to analyze any particular proposal or to express an opinion about its constitutionality.  Accordingly, my testimony simply identifies the principal First Amendment questions that will need to be addressed.  My primary conclusion is, one way or the other, the FCC can no longer put off constitutional review of its indecency policies.

III. FCC v. Pacifica Foundation Does Not Provide Unlimited Authority to Define and Punish Broadcast Indecency

Senate Resolution 283, adopted last month by unanimous consent, urges the FCC to “vigorously and expeditiously enforc[e] its own United States Supreme Court-approved standard for indecency in broadcast media, as established in the declaratory order In the Matter of a Citizen’s Complaint Against Pacifica Foundation Station WBAI(FM), 56 F.C.C.2d 94 (1975).”  But in this regard, it is important not to read too much into the Pacifica precedent.  The Supreme Court’s 5-4 decision in that case did not give the FCC carte blanche authority to decide what broadcasts are indecent or to impose unlimited penalties. 

It is important to keep in mind that the ability to regulate so-called “indecent” speech is a limited constitutional exception, not the general rule.  The Supreme Court has invalidated efforts to restrict indecency in print,[27] on film, [28] in the mails,[29] in the public forum,[30] on cable television[31] and on the Internet.[32]  The Pacifica Court applied a somewhat different standard for broadcasting, but that decision cannot be read too broadly.   Pacifica was a fragmented (5-4) decision that did not approve a particular standard or uphold a substantive penalty against the licensee.[33]  The Supreme Court subsequently has acknowledged that the FCC’s definition of indecency was not endorsed by a majority of the Justices, and it repeatedly has described Pacifica as an “emphatically narrow holding.”[34]    Later decisions by lower courts did not analyze or reaffirm Pacifica so much as simply recite and apply its outcome.[35] 

Accordingly, it is not prudent simply to assume that policies approved in the past remain valid now or in the future.  The Supreme Court has long held that “because the broadcast industry is dynamic in terms of technological change[,] solutions adequate a decade ago are not necessarily so now, and those acceptable today may well be outmoded ten years hence.” [36]  The Commission recently reaffirmed this principle in its omnibus broadcast ownership proceeding, noting that current regulations failed to account for vast changes in the media landscape.[37]

Much has happened in the 25 years since Pacifica was decided and the 10 years since the D.C. Circuit last addressed the issue of the broadcast indecency standard.  To begin with, it is far less plausible for the FCC to justify indecency regulations on the premise that “the broadcast media have established a uniquely pervasive presence in the lives of all Americans.” [38]  As the Commission most recently concluded, “the modern media marketplace is far different than just a decade ago.”  It found that traditional media “have greatly evolved,” and “new modes of media have transformed the landscape, providing more choice, greater flexibility, and more control than at any other time in history.”[39]  Of particular relevance here, the Commission noted that “[t]oday’s high school seniors are the first generation of Americans to have grown up with this extraordinary level of abundance in today’s media marketplace.”  It found that most teens have access to cable television and high speed Internet access, many live in households that receive 100 to 200 channels of video programming and thus “have come to expect immediate and continuous access to news, information, and entertainment.”[40]  In this environment, imposing special speech restrictions on the broadcast medium compared to other media seems futile.[41]

It also must be noted that society has changed as well, and has grown far more tolerant of the wide range of content that is available.  In 1951 a Houston television station caused a public outcry when it planned to air a bedding commercial showing a husband and wife in a double bed, and that same decade the Everly Brothers’ song Wake Up, Little Susie was banned in Boston.[42]  We do not live in the same culture as when Rob and Laura Petrie on the Dick Van Dyke Show had to sleep in separate beds,[43] yet the FCC’s indecency rules are based on a history of indecency enforcement dating back to 1927.[44]  Changes in technology, in society, and in audience expectations all have contributed to vastly different broadcast standards and practices.[45]  This is not to suggest that such developments necessarily are “good” or “bad.”  They merely reflect changes in the “contemporary community standards for the broadcast medium.”

The law also has evolved since the Supreme Court considered the FCC’s broadcast indecency rules.  The Court has since confirmed that “indecent” speech is fully protected by the First Amendment and is not subject to diminished scrutiny as “low value” speech, as three Justices who joined the Pacifica plurality opinion had suggested.[46]   Rather, it stressed that “[t]he history of the law of free expression is one of vindication in cases involving speech that many citizens find shabby, offensive, or even ugly,” and that the government cannot assume that it has greater latitude to regulate because of its belief that “the speech is not very important.”[47] Additionally, since Pacifica the Court has invalidated government-imposed indecency restrictions on cable television channels despite its finding that “[c]able television broadcasting, including access channel broadcasting, is as ‘accessible to children’ as over-the-air broadcasting, if not more so.”[48]  More importantly, in Reno v. ACLU, the Court for the first time subjected the indecency definition (in the Internet context) to rigorous scrutiny and found it to be seriously deficient. [49]  These decisions raise serious questions about the continuing validity of Pacifica. 

Throughout this period, the FCC has shown a marked inability to clarify and apply its own standard.  After a decade in which the FCC applied its policy only to the seven specific words in the George Carlin monologue (the so-called “seven dirty words”), it switched to enforcing a “generic” indecency policy.[50]  In 1994, the Commission settled an enforcement action (in part to avoid having to respond to a First Amendment defense in court) and committed to providing “industry guidance” as to the meaning of the indecency standard within six months of the settlement agreement.[51]  It took another six and one-half years for the Commission to fulfill this condition by issuing a policy statement in 2001 purporting to offer interpretive guidance on the indecency standard.[52]  Yet despite this belated attempt at clarification, the Commission itself has been unable to interpret its own standard, as explained in greater detail below.

IV.              The Indecency Standard Presents a Constitutional Paradox

From the outset, the indecency standard has presented a genuine paradox.  The courts confirm that indecent speech is fully protected by the First Amendment, yet the FCC’s amorphous standard provides no protection as a practical matter.  On the other hand, obscenity is “unprotected” by the First Amendment, yet constitutional doctrine has evolved that provides far greater legal protection than does the indecency standard.  A brief review of these two doctrines and how they developed places the current deficiencies of the indecency regime into bold relief.

A. Experience With a Vague Test for Obscenity Foreshadowed the Constitutional Problems of the Indecency Standard

Before the courts extended First Amendment principles to the law of obscenity, the legal test that applied was very similar to the standard now used by the FCC to define indecency.  The first American cases were based on a 19^th Century English decision, Regina v. Hicklin, which held that obscenity was material that tended to corrupt the morals of a young or immature person.[53]  Under the Hicklin standard, literature was judged obscene based upon a review only of brief excerpts of a publication and not the work as a whole.[54]  Consequently, the intended audience of a book was unimpor­tant if a young and inexperienced person might be exposed to the supposedly corrupting influence. Additionally, it was immaterial whether the book possessed literary merit.  Indeed, some found that literary merit compounded the crime, by “enhancing a book’s capacity to deprave and corrupt.” [55] 

Not surprisingly, under this test for obscenity, “[t]he first half of the 20th century [was] marked by heated litigation over books which are now generally regarded as classics.” [56]  Using the Hicklin rule, American courts held obscene such works as Theodore Dreiser’s An American Tragedy,[57] D.H. Lawrence’s Lady Chatterley’s Lover,[58] Erskine Caldwell’s God’s Little Acre,[59] Radclyffe Hall’s The Well of Loneli­ness,[60] Arthur Schnitzler’s Casanova’s Homecoming,[61] Henry Miller’s Tropic of Cancer and Tropic of Capricorn,[62] and James Joyce’s Ulysses.[63]

In many cases, the mere threat of prosecution was enough to stop publication.  By this method, publishers were “persuaded” to withdraw from circulation and destroy all outstanding copies of Women in Love, by D.H. Lawrence, The Genius, by Theodore Dreiser, and Memoirs of Hecate County, by Edmund Wilson.[64]  Other literary greats that were attacked included Nathaniel Hawthorne, Walt Whitman, Ernest Hemmingway, Sinclair Lewis, Leo Tolstoy, Honore de Balzac, and George Bernard Shaw.[65]

A significant break with Hicklin came in United States v. One Book Entitled Ulysses, where the United States Court of Appeals for the Second Circuit declined to find the book Ulysses obscene when “taken as a whole” and after assessing its effect on the average member of the community.[66]  Some other courts began to follow suit.[67]  Despite this emerging trend, however, many publishers continued to shy away from books they considered risky.  For example, Lady Chatterley’s Lover, written in 1928, was not published in its unexpurgated form in America until 1959.[68]  Tropic of Cancer, written in 1934, was unpublished in the United States for 26 years.[69]

Finally, in 1957, the Supreme Court expressly abandoned the Hicklin rule and held that the First Amendment requires that works must be judged as a whole in their entire context, considering their effect on the average member of the com­munity – not the most vulnerable.  Moreover, a work could not be considered obscene if it possessed serious value.[70]  That same year, the Court struck down a Michigan law that prohibited books containing “immoral, lewd [and] lascivious language . . . tending to the corruption of the morals of youth” because it “reduce[d] the adult population . . . to reading only what is fit for children.” [71]   

Eventually, the Court settled on the current three part test for obscenity: (1) whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest, (2) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (3) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.”[72]  Debate about the test for obscenity has continued, but the problems associated with the discredited Hicklin rule are now a thing of the past.

B. The Indecency Standard Provides Less Constitutional Protection Than Does the Test for Obscenity

The unfortunate history of obscenity law and the change that occurred after courts imposed the discipline of the First Amendment on this area of the law should have been instructive in the development of an indecency standard since such speech is supposed to be constitutionally protected.  However, the test for indecency prohibits the transmission (at  a time of day when children are likely to be in the audience) of “language or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities or organs.” [73]  Just as under Hicklin, the indecency standard applies to selected passages, not to works as a whole; it is based not on the average person in a community, but upon children; and literary or artistic merit does not bar liability.  In short, the three-part test that courts developed over time to ensure the application of First Amendment restraints on obscenity laws is precisely what the indecency standard lacks.

The FCC historically has defended its indecency definition on the basis that it is “similar to language” employed in part of the Miller obscenity test.[74]  In Reno, however, the government unsuccessfully offered precisely the same argument – that the Communications Decency Act’s (“CDA’s”) “patently offensive” and “indecency” standards are one part of the three-prong Miller test and therefore are constitutional – but the Supreme Court rejected that defense.  It stressed that “[j]ust because a definition including three limitations is not vague, it does not follow that one of those limitations, standing by itself, is not vague.”[75]  The Court explained that the other Miller limitations (requiring that the work be “taken as a whole,” appeal to the “prurient” interest, and that it must lack serious literary, artistic, political or scientific value) “critically limit[] the uncertain sweep of the obscenity definition.”[76] 

1. The Indecency Standard Does Not Require Review of the Work as a Whole

Unlike the Miller obscenity test, the indecency standard enforced by the FCC has never required an examination of the work “as a whole,” or that the material appeal to the prurient interest. [77]  Quite to the contrary, the Commission has expressly rejected claims that it “is required [to] take into account the work as a whole.” [78]  Accordingly, the FCC has found a violation of the law where less than five percent of a program was devoted to sexually-oriented material.  The Commission concluded that it could impose a fine “[w]hether or not the context of the entire [program] dwelt on sexual themes.”[79]  Similarly, if the FCC reverses the staff Golden Globes Order, it will have decided that a single word uttered in the course of a three-hour live telecast is sufficient to render the program indecent.

The focus of indecency enforcement on selected passages and not the work as a whole is a significant constitutional defect.  Because of this, the Supreme Court found that the indecency standard when applied to the Internet “unquestionably silences some speakers whose messages would be entitled to constitutional protection.”[80]   The Court held that the requirement that the isolated passages be considered “in context” did not cure the problem.  More recently, in rejecting the application of the “harmful to minors” standard to online communications, the United States Court of Appeals for the Third Circuit explained that “[t]he taken ‘as a whole’ language is crucial.”[81]  As the Supreme Court has emphasized, it is “an essential First Amendment rule [that t]he artistic merit of a work does not depend on the presence of a single explicit scene.”[82]  Accordingly, any standard that permits a decisionmaker to penalize “indecent” or “harmful to minors” material in isolation necessarily “results in significant overinclusiveness.”[83]

2. The Indecency Standard Does Not Evaluate the Effect of Material on the Average Person

The Miller test requires that the patent offensiveness of a work be measured by its impact on the average member of the community, and not its effect on the most “vulnerable,”  but the indecency standard is precisely the opposite.  Like the discredited Hicklin rule, the focus of indecency regulation is the effect of sexually-oriented material on children.[84]  This focus on minors was one of the principal problems of obscenity law before the First Amendment was brought to bear on this area of the law, yet the indecency standard replicates the error.

Even if the indecency standard employed all three prongs of the Miller test, its  requirement that the Commission assess patent offensiveness as to children makes the standard far less precise.  As the Third Circuit pointed out in ACLU v. Ashcroft, the term minor “applies in a literal sense to an infant, a five-year-old, or a person just shy of the age of seventeen” and that speakers “must guess at the potential audience of minors and their ages” in order to comply with the law.[85]  Such a requirement “is not narrowly drawn to achieve the statute’s purpose . . . and does not lend itself to a commonsense meaning.”[86]  The court concluded that “[a]s a result of this vagueness” those affected by the law will be deterred from engaging in a wide rage of constitutionally protected speech” and that “[t]he chilling effect caused by this vagueness offends the Constitution.” [87]    

The Third Circuit in Ashcroft was ruling on the “harmful to minors” standard, which is even more analytically rigorous than indecency because it applies all three parts of the Miller test (as modified for minors).  The court’s conclusions apply with even greater force to the indecency standard, given its lack of definitional embellishment.  Moreover, the “harmful to minors” standard requires the government to demonstrate that material is “virtually obscene” and even then cannot impose restrictions that limit access by adults.[88]  The indecency standard, by sharp contrast, does not come close to providing this level of protection, thus magnifying the constitutional problems of the FCC’s rules.

3. The Indecency Standard May Restrict Material That Has Serious Literary, Artistic, Political or Scientific Value

Contrary to the Miller standard, the FCC has stated that the merit of a work is not a complete defense to an indecency complaint, but is only “one of many variables that make up a work’s ‘context.’” [89]  In this regard, Judge Patricia Wald has noted that “‘[i]ndecency’ is not confined merely to material that borders on obscenity – ‘obscenity lite.’”[90]  Rather, the standard casts a larger net encompassing other, less offensive protected speech regardless of its merit.  Thus, in many instances, “the programming’s very merit will be inseparable from its seminal ‘offensiveness.’”[91]  The FCC has even acknowledged that, because serious merit does not save material from an indecency finding, there is a “broad range of sexually-oriented material that has been or could be considered indecent” that does “not [include] obscene speech.” [92]  Thus, the Commission has expressly declined to hold that “if a work has merit it is per se not indecent,” and that material may be found indecent for broadcast even where the information is presented “in the news” and is presented “in a serious, newsworthy manner.” [93]  In this regard, it is sobering to realize that in Gillett Communications v. Becker, a federal district court held that the videotape Abortion in America: The Real Story, transmitted as part of a political advertisement by a bona fide candidate for public office, was indecent. [94]

In striking down the CDA’s indecency standard as applied to the Internet, the Reno Court found the absence of a “societal value” requirement “particularly important.”[95]  It noted that requiring the inclusion of a work’s merit “allows appellate courts to impose some limitations and regularity on the definition by setting, as a matter of law, a national floor for socially redeeming value.”[96]  No such requirement is contained in the indecency standard.[97]  As a result, the Court concluded that application of the indecency standard threatened to restrict “discussions of prison rape or safe sexual practices, artistic images that include nude subjects, and arguably the card catalogue of the Carnegie Library.” [98]  The district court in Reno similarly had expressed concern that the indecency standard restricts “a broad range of material” including “contemporary films” such as “Leaving Las Vegas.”[99]    

The FCC has been baffled by such questions, as evidenced by its investigation for indecency of the BBC-produced, Peabody Award-winning mini-series, The Singing Detective.  The critically-acclaimed program was aired by various public television stations between 1988 and 1990, and a year-long FCC investigation ensued after the program appeared on a KQED-TV in San Francisco in 1990.  The Commission’s review did not consider the full seven hours of the program, but instead focused on several short scenes that included brief glimpses of nudity and one scene in which a child witnessed a sexual encounter.  The FCC never formally resolved the complaint, and simply let the matter fade away after putting the TV station through the trouble and significant expense of defending its actions for an extended period.[100]  But the Commission’s actions ensured that The Singing Detective would not be broadcast again in the United States.  The episode demonstrates that, just as under the Hicklin rule, a lax standard can censor meritorious speech, and that a successful prosecution is not needed in order to suppress the work.[101] 

4. The Indecency Standard Lacks Strong Procedural Safeguards

As a general matter, the First Amendment requires the government to use “sensitive tools” to “separate legitimate from illegitimate speech.” [102]  Strict procedural requirements govern any administrative procedure that has the effect of denying or delaying the dissemination of speech to the public.[103]  In particular, the First Amendment commands that any delay be minimal, and that the speaker have access to prompt judicial review.[104]   Where ongoing government regulation of speech is involved, the government’s obligation to provide due process is heightened.[105]  In every case where the government seeks to limit speech, the constitutional presumption runs against the government, which must justify the restriction.[106] 

The FCC’s regime of enforcing the indecency rules is inconsistent with these basic principles.  For example, the Commission has begun to issue letters of inquiry that indicate “a complaint has been filed” and demand detailed responses from licensees but do not indicate the identity of the complainants.[107]  Indeed, the Commission does not require its anonymous complainants to submit a tape or transcript of allegedly offending broadcasts, and has indicated that when a complaint is received it is the licensee’s obligation to prove that the transmission in question was not indecent.  As the Chief of the FCC’s Enforcement Bureau said at a conference of the National Association of Broadcasters’ state leadership, “[i]f the station can’t refute information in the complaint, we’ll assume the complainant got it right.”[108]  But such an approach “raises serious constitutional difficulties” when the government seeks “to impose on [a speaker] the burden of proving his speech is not unlawful.” [109]    

This problem is exacerbated by the erosion of the Commission’s requirement that complainants provide a tape or transcript of the offending broadcast.  As recently as 2001 the FCC stressed that it needed “as full a record as possible to evaluate allegations of indecent programming” because of “the sensitive nature of these cases and the critical role of context.” [110]  It explained that it could take action only in response to “documented complaints,” and that the Commission’s historic practice was to require “a full or partial tape or transcript or significant excerpts of the program.”[111]  More recently, however, the FCC has moved away from this requirement, and some Commissioners have suggested that it be dispensed with entirely.  In one case, the Enforcement Bureau acknowledged the lack of “a tape, transcript or significant excerpt” but nevertheless concluded that “the excerpts referenced in complainant’s letters . . . were ‘significant enough’” for it to consider “the context of the material.”[112]  This practice begs the question of how the Commission can evaluate context in the absence of a tape or significant excerpt, and it raises the more constitutionally troubling issue of shifting the burden of proof.  To “cure” this problem, the Commission has begun to require broadcasters to supply tapes in response to letters of inquiry (that were triggered by complaints).  Some of the complaints are years old and are unsubstantiated, but the Commission has asked licensees to provide information in order to supply the necessary context.[113]   Some FCC Commissioners have even suggested requiring licensees to submit tapes of their broadcasts in response to any indecency complaint.  But whether or not tapes are required as a matter of routine or merely to bolster otherwise deficient complaints, the Commission has ventured into dangerous territory.  The D.C. Circuit has held that requiring licensees to tape programs to facilitate official oversight “presents the risk of direct governmental interference in program content” and is constitutionally infirm.[114]

Finally, once the Commission, in its sole discretion, decides that a particular broadcast is indecent, the process to review that decision is anything but prompt.  For the licensee, challenging an indecency determination generally requires refusing to pay a proposed forfeiture and enduring an enforcement proceeding before it may raise a defense in court, assuming the government initiates a collection action.[115]  During this time, the Commission may withhold its approval of other matters the licensee has pending before the agency.  For this reason, no licensee has been able to hold out long enough to test the validity of an FCC indecency determination.[116]  From the perspective of the artist whose work may be effectively banned from the air by an FCC decision (including a decision made on delegated authority by a lower level official), the government’s position is that there is no right to seek judicial review at all. [117]        

C. Judicial Scrutiny of the Indecency Standard in Other Contexts Underscores its Constitutional Problems

Recent decisions of the Supreme Court and of lower courts confirm that the indecency standard cannot survive rigorous constitutional review.  Although these decisions did not examine the indecency regime in the context of broadcasting, their analysis undermines the key premises of the same standard the FCC historically has used to enforce its broadcast rules.  These decisions are particularly instructive, since no majority of the Supreme Court ever endorsed the broad application of the Pacifica standard, and lower courts pointedly refrained from analyzing the logic of the test.   Yet when the Supreme Court finally deconstructed the language of the indecency rule, it held that it was unconstitutional for all of the reasons identified above. 

Reno v. ACLU represents the first time the Supreme Court subjected the indecency test to rigorous First Amendment review and in doing so it found the standard to be seriously deficient.  Writing for a near-unanimous Court, Justice Stevens concluded that the indecency restrictions of the Communications Decency Act (“CDA”) were invalid because of vagueness and overbreadth.[118]  This finding is especially meaningful since Justice Stevens also wrote the Pacifica decision, and he began his analysis by reaffirming the constitutional baseline: that the governmental interest in protecting children from harmful materials “does not justify an unnecessarily broad suppression of speech addressed to adults.”[119]  Reaffirming the Court’s earlier rulings in Butler, and Bolger, the Court emphasized that the government may not reduce the adult population to only what is fit for children.[120]   

Since then, virtually every court that has ruled on similar laws has held that they are unconstitutional.[121]  These cases related primarily to state attempts to regulate “harmful to minors” material.  But as the Third Circuit found most recently in reviewing the Child Online Protection Act, successor to the CDA, the focus on minors (among other things) rendered the law ambiguous.  “The chilling effect caused by this vagueness,” the court concluded, “offends the Constitution.”[122]  These cases struck down or enjoined laws that restricted online communications, not broadcasting, but the logic of the decisions is not affected by the medium of transmission.  A vague standard does not become more precise – or more consistent with constitutional requirements – because the law is applied to one technology and not another.The question, then, is whether First Amendment protections for broadcasting are so attenuated to permit the government to apply a standard that the courts have now found to be patently defective.[123]  The primary rationale for such different treatment, cited both by the Supreme Court and now touted by the Commission, is that more intensive content regulation has been permitted for broadcasting historically.[124]  The Court in Pacifica described the “pervasive presence” of broadcasting and relied on the fact that broadcast licensees have been barred by federal law from transmitting “obscene, indecent or profane language” ever since the Radio Act of 1927.[125]  The Commission continues to point to “special justifications” for the different treatment, including “the history of extensive government regulation of the broadcast medium,” spectrum scarcity, and the “invasive nature” of broadcasting. [126] 

Given the changes in the media landscape most recently catalogued by the FCC in various proceedings, the principal remaining “special justification” is the history of content regulation by the FCC.  But this is a tenuous basis upon which to perpetuate a constitutionally deficient standard.  For the FCC to argue that it can regulate broadcasting content more restrictively now because it did so in the past does not distinguish broadcasting from other media.  Indeed, as noted earlier, the government restricted books under the Hicklin rule in a way that is almost identical to the FCC’s current regulation of radio and television.  Similarly, when the FCC was first chartered, state and local governments subjected films to prior review and censorship.[127]   But the law changed, and the last such cinema review board in the United States was finally dismantled a decade ago.[128] 

Accordingly, it is difficult for the Commission to argue that it may continue to rely on First Amendment law as it applied to broadcasting in 1927 or 1934 because Congress authorized it to regulate “indecent” or “profane” broadcasts in those years.  A brief look at the Commission’s actions during that period shows why this is so.  In late 1937, for example, hundreds of radio listeners complained about an episode of NBC’s “Charlie McCarthy” program in which the puppet Charlie McCarthy and Mae West portrayed the title characters in a sketch entitled “Adam and Eve.”  The FCC investigated the matter and found nothing in the script objectionable, but some of Mae West’s inflections during the broadcast were found to be “suggestive.”  On this basis the FCC admonished NBC and its affiliates that the program was “vulgar, immoral or of such other character as may be offensive to the great mass of right-thinking, clean-minded American citizens.”[129]  In another early case, the Ninth Circuit upheld the conviction of an individual for violating Section 29 of the Federal Radio Act which prohibited the utterance of “any obscene, indecent, or profane language by means of radio communication.”  Although the court agreed that the speaker did not make any statements that could be considered obscene or indecent (even though it applied the Hicklin rule), it nevertheless concluded that the broadcast was “profane” because the defendant “referred to an individual as ‘damned,’” that he “used the expression ‘By God’ irreverently,” and “announced his intention to call down the curse of God upon certain individuals.”[130] 

Such decisions obviously are unsupportable today, yet they represent “the history of extensive government regulation of the broadcast medium” upon which the Commission relies as a “special justification” supporting its indecency policies.[131]  While some may argue that the Commission’s notion of what is “patently offensive” or “indecent” has been updated since the 1930s, this does not answer the question presented by the indecency standard’s emphasis on “contemporary” community standards.  The standard was not frozen in 1978, when the Supreme Court decided Pacifica, and the Commission has a constitutional obligation to determine what type of programming current audiences have come to expect in 2004.  In whatever fashion the Commission chooses to address this issue, it is clear that the First Amendment does not countenance the notion of individual Commissioners using their personal preferences to define community standards.[132] 

V.                 FCC Enforcement Experience Confirms the Imprecision of the Indecency Standard

FCC decisions under the indecency standard provide scant guidance either for those who must enforce or comply with the law.  Since there is no body of court decisions interpreting or applying the indecency standard in particular cases, licensees must look to the Commission for guidance.  But the FCC’s rulings provide no real assistance, because most are unavailable, thus constituting a body of secret law.[133]  The vast majority of indecency decisions are unpublished, informal letter rulings that are stored in individual complaint files at the FCC.  In this regard, the dismissals would be most helpful to understanding the Commission’s application of the standard, but these decisions, with a few exceptions, are not made public.  Even where the Commission reaches the merits of an indecency complaint, its decision typically consists of conclusory statements regarding its determination that a particular broadcast is indecent.[134]

Seeking to address this problem (and finally to respond to its obligation in the Evergreen Media settlement agreement), the Commission in April 2001 issued a Policy Statement purporting to clarify its criteria governing enforcement of the indecency standard.[135]  It noted that there are two fundamental determinations that must be made:  (1) whether the material depicts or describes sexual or excretory organs or activities, and (2) whether the material is “patently offensive” as measured by a national standard for the broadcast medium.  The Policy Statement set forth a number of examples of enforcement actions and sought to analyze their outcomes based on the degree of explicitness, whether the material “dwells” on sexual matters, and whether the material is “pandering.”[136]  However, the Commission pointed out that such “contextual determinations are necessarily highly fact-specific, making it difficult to catalog comprehensively all of the possible contextual factors that might exacerbate or mitigate the patent offensiveness of particular material.”  In other words, because each case is decided based on its individual facts, the Commission could not articulate specifically what factors will distinguish one case from another.

The FCC’s inability to describe how the factors it uses would apply in a given case highlighted the absence of precision in the indecency standard itself.  The root problem, as the Reno Court recognized, is with the lack of judicial rigor in the definitions of “indecency” and “patent offensiveness.”  The indecency standard gives the FCC excessive discretion because it is not limited by requirements that the affected speech be specifically defined by law, or lack serious merit, or be considered as a whole. [137]  These problems were graphically illustrated by two forfeiture orders that were issued within weeks of the Industry Guidance. 

In the first of these decisions, the Enforcement Bureau issued a $7,000 Notice of Apparent Liability to noncommercial radio station KBOO-FM for the broadcast of a rap song entitled “Your Revolution.”[138]  The song, written and performed by award-winning poet and performance artist Sarah Jones, is a loose reworking of Gil Scott-Heron’s classic poem, “The Revolution Will Not Be Televised.”  According to Jones, “‘Your Revolution’ was written as a response to music on mainstream radio which often treats women as sex objects and play things.”  The song has been performed for junior high and high school students in educational programs coordinated through the New York City Board of Education.  Nevertheless, the Bureau concluded that “Your Revolution” is indecent because it contains “unmistakably patently offensive sexual references.” 

Although the policy statement described the context of a work as “critically important,” the Bureau dismissed KBOO’s arguments that the sexual references in “Your Revolution” must be evaluated as contemporary social commentary.  It pointed out that “the Commission has rejected an approach to indecency that would hold that material is not per se indecent if the material has merit,” and concluded that the FCC “previously has found similar material to be indecent, and we see no basis for finding otherwise in this case.”  Despite this confident assessment, the Enforcement Bureau reversed itself nearly eighteen months later, in February 2003.[139]  Describing the broadcast as “a very close case,” the Bureau found that “on balance and in context, the sexual descriptions in the song are not sufficiently graphic to warrant sanction.”  It noted that Sarah Jones has been asked to perform “Your Revolution” at high school assemblies and concluded that the song did not violate contemporary community standards for the broadcast medium.

Shortly after the initial KBOO forfeiture was released, the Enforcement Bureau issued another $7,000 Notice of Apparent Liability for the broadcast of a rap song.[140]  This time, the notice was issued to a Pueblo, Colorado commercial station for repeated broadcasts of the “radio edit” of the Eminem song “The Real Slim Shady.” Although the Bureau acknowledged that the station played a version of the song “that omitted certain offensive language through the use of a muting device or overdubbed sound effect,” it found that “the licensee failed to purge a number of indecent references” and that even the edited version of the song “contains unmistakable offensive sexual references.” [141]

On reconsideration, however, the Bureau found that it had been mistaken about its previous “unmistakable” conclusions.  It characterized the sexual references in the radio edit of “The Real Slim Shady” as “oblique,” and not “expressed in terms sufficiently explicit or graphic enough to be found patently offensive.”  As to the context of the song, the Bureau concluded that the edited version did “not appear to pander to, or to be used to titillate or shock its audience.”[142]

These decisions show that the FCC is sometimes willing to correct its mistakes – which is good – but they also show that the agency was unable to apply its own standard even as it was attempting to provide industry guidance.  The initial rulings effectively banned the material in question from the air, except for radio stations that might have been willing to risk the transmission of material already branded by the government as indecent. [143]  Sarah Jones’ “Your Revolution” was kept off the air for almost two years, while the radio edit of “The Real Slim Shady” was banned for over six months. 

In cases such as this, the fault lies not so much in the agency as in the standard it has been called upon to enforce.  Indeed, the initial indecency findings regarding Sarah Jones and Eminem were foreshadowed by Justice Brennan’s dissent in Pacifica where he criticized the plurality for its “depressing inability to appreciate that in our land of cultural pluralism, there are many who think, act, and talk differently from the Members of this Court, and who do not share their fragile sensibilities.”  He added that “[i]t is only an acute ethnocentric myopia that enables the Court to approve the censorship of communications solely because of the words they contain.”[144]  The FCC illustrates Justice Brennan’s point only too well, where five political appointees have been tasked with defining “contemporary community standards for the broadcast medium.”  Experience shows that the Commission is ill-equipped to do so.[145] 

Administrative procedures that the Commission believed would mitigate the inherent uncertainty of the indecency standard have proven to be an utter failure.  The FCC in the past has asserted that, if individual rulings fail to “remove uncertainty” in this “complicated area of law,” it may use its power to issue declaratory rulings to clarify the indecency standard. [146]  In practice, however, the Commission has never granted such a request.

When Pacifica Radio sought to broadcast its annual Bloomsday reading from James Joyce’s Ulysses, the Commission declined to issue a declaratory ruling that the material was not indecent despite a 60-year-old judicial precedent supporting the literary value of the book. [147]   The FCC’s refusal to issue an opinion on the literary merits of Ulysses (in the same year it promised to “remove uncertainty” through declaratory rulings) is particularly telling. As Judge Sloviter observed in holding that the CDA’s indecency standard was invalid, the government’s promise that it will enforce the indecency standard “in a reasonable fashion . . . would require a broad trust indeed from a generation of judges not far removed from the attacks on James Joyce’s Ulysses as obscene.”[148] 

The Commission has refused to clarify its indecency standard even in the face of judicial requests for guidance.  In Playboy, for example, the district court asked whether there are “any FCC letter or advisory opinions that are available to assist this Court, the plaintiff, or other channels . . . in construing the permissible scope of regulation.”[149]  Notwithstanding the district court’s prompting, the FCC rejected Playboy’s request for a declaratory ruling to clarify the status of a safe sex documentary that was to premiere on World AIDS Day in December 1997, anlong with several other programs.  In a one-page letter denying the request, issued long after World AIDS Day came and went, the Chief of the Cable Services Bureau wrote that “declaratory rulings related to programming issues must be dealt with cautiously” and “have the potential to be viewed as prior restraints.”[150] 

Just as the declaratory ruling process was no help to Playboy, it failed to provide any specific relief for Sarah Jones, whose work was banned from the air for eighteen months by the Bureau’s forfeiture order.  Jones initially filed a declaratory judgment action in federal district court seeking a determination that the work is not indecent and that the FCC’s decision violated her rights under the First and Fifth Amendments.  However, the court dismissed the action, finding that the Bureau decision was not “final agency action” and that any appeal from a final action must be brought in the court of appeals.  The court suggested that Jones should ask the FCC to issue a declaratory ruling if she was concerned about delay in obtaining a final order.[151]  On October 2, 2002, Jones filed such a declaratory ruling request, but it was dismissed as moot when the Bureau reversed its initial order in February 2003. 

Although Jones ultimately got the substantive ruling she sought as a result of KBOO’s reconsideration request, the FCC’s declaratory ruling procedures did nothing to expedite the process or clarify the law.  Even with the correct (albeit grossly delayed) resolution, the Bureau’s description of the matter as “a very close case” ensures that artists and broadcasters will derive no meaningful guidance from the reconsideration decision, other than in its application to the poem “Your Revolution.”[152]  If the Commission still believes that the Sarah Jones matter was “close,” then the only thing that is clear about this area of law is the FCC’s inability to evaluate artistic merit.

VI.              There Are No Quick Fixes That Can Cure the Constitutional Dilemma Posed by the Indecency Standard

Given the inherent imprecision of the indecency standard it is superficially tempting to remove uncertainty simply by specifying which words are forbidden on radio and television.  The FCC followed this approach between 1978 and 1987 by focusing enforcement on the seven words contained in the George Carlin routine that led to Pacifica.[153]  However, the Commission concluded that the approach was unsatisfactory, and in mid-1987 announced that it would apply the indecency standard generically.  Now, after 16 years of experience with the generic standard, people both inside and outside the FCC are advocating once again the adoption of specific prohibitions.  As noted earlier, Chairman Powell reportedly has called for a per se ban on profanity between 6 a.m. and 10 p.m. (with a possible exception for political speech),[154] and Congressman Ose has introduced a new list of prohibited words.[155] 

Such a per se approach is unlikely to remove uncertainty in the way its proponents hope, and would raise a host of new constitutional questions.  Currently, the indecency standard seeks to evaluate the context in which words are used as a diluted proxy for the obscenity test’s “serious merit” prong.  Removing this factor from the analysis would mean that the listed words are considered indecent regardless of the context, so long as they are broadcast between 6 a.m. and 10 p.m.  A per se approach would be easier to apply than the current indecency standard (at least initially), but would impose significant penalties on speech that unquestionably is protected by the First Amendment.  For example, such a rule would impose significant penalties on any broadcaster who permitted readings from certain portions of the Bible.[156] 

It would also impose sanctions on broadcasters that transmitted one of the forbidden words during a newscast, or in the presentation of classic literature.  The FCC has faced such questions in the past:

·        In 1991 the Commission dismissed an indecency complaint against National Public Radio for a newscast which included an except of a wiretap from the trial of mob boss John Gotti.  The words “f**k” or “f**king” were repeated ten times in a 30-second segment.  Nevertheless, the Commission found that the “surrounding circumstances persuade us that the use of expletives during the Gotti segment does not meet our definition of broadcast indecency.”[157]

·        When Pacifica radio sought a declaratory ruling permitting it to broadcast annual Bloomsday reading from James Joyce’s Ulysses, the Commission declined to give “official” approval.  But it noted that “the Commission specifically declined to define indecency by referring to a list of particular words,” and stressed “the fact that Pacifica’s petition recited passages containing some of the same words that were involved in the 1978 and 1987 Pacifica rulings is not necessarily dispositive.” [158]

A per se indecency rule would preclude the FCC from allowing this type of editorial discretion in the future.  Such an inflexible rule would thus invite close judicial scrutiny for restricting too much expression, including speech that has serious literary, artistic, or scientific merit.

Perhaps for that reason, Chairman Powell reportedly has suggested a possible exception to a per se rule for “political” speech.  However, from a constitutional standpoint, it is difficult to justify such a carve-out without also including news, commentary, literature, or art.  Moreover, assuming such a technical limitation is possible, it is difficult to predict how it would provide the type of limits that its proponents presumably intend.  For example, if U-2’s Bono had made a political statement during the Golden Globe presentation (e.g., “thanks for the trophy, and, by the way, f**k the war in Iraq”), the Commission would face the same interpretive problem that currently exists, given the weight of precedent in this area. [159]   In short, there are no easy answers in this area, whether one proposes a straight per se indecency rule, or one with one or more exceptions.  Either way, Congress and the FCC will have the task of drawing and defending a line between speech that is protected and expression that can be punished.

Conclusion

Congress and the FCC currently are considering an array of proposals to increase the level of enforcement of the FCC’s broadcast indecency rules and to apply the standard more strictly.  However, it has been 25 years since the Supreme Court considered the First Amendment implications of indecency enforcement in the context of broadcasting, and much has changed during that time.  Any move to reaffirm the existing rules or to make them more stingent must be accompanied by a comprehensive review of the rules’ constitutionality.

The law of indecency is the direct descendent of the Hicklin rule – a legal doctrine born during the reign of Queen Victoria.  Imported to America during the age of Anthony Comstock in the Nineteenth Century, it governed obscenity law until the First Amendment was brought to bear over half a century later.  Under its lax standards, courts focused primarily on the potential impact of books on children, with the predictable result that literary classics were prosecuted and banned. This doctrine is unknown in American jurisprudence today but for one area: the FCC’s broadcast indecency rules.  Although courts and the Commission routinely state that indecent speech – unlike obscenity – is constitutionally protected, the standard the government employs permits it to penalize speech without regard to the work as a whole, its artistic merit, or its overall appeal to the average person. 

Where the Victorian era obscenity standard was used to censor Ulysses, An American Tragedy, and Tropic of Cancer, the indecency standard has effectively suppressed works like the Peabody Award winner The Singing Detective, critically-acclaimed plays, and political poetry like “Your Revolution.”  Because of its vagueness, the indecency test can be used to restrict a wide range of constitutionally protected speech including “discussions of prison rape or safe sexual practices, artistic images that include nude subjects, and arguably the card catalogue of the Carnegie Library.”[160]    For that reason, a full constitutional review of the FCC policy is essential.

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