The Law On Obscenity and Indecency In Broadcasting
Most people would argue that obscenity and indecency are subjective matters,
and I agree.
But, when it comes to obscenity and indecency being broadcast over public
airwaves, it is not a subjective matter.
The United States Supreme Court has defined obscenity and indecency and
has upheld the enforcement policies of the Federal Communication Commission
relative to commercial radio and television broadcasters and the public
airwaves.
Obscenity Defined
1) an average person, applying contemporary community standards, must find
that the material, as a whole, appeals to the pruient interest;
2) the material must depict or describe, in a patently offensive way as
measured by contemporary community standards, sexual or excretory conduct;
and
3) the material, taken as a whole, must lack serious literary, artistic,
political or scientific value.
The Supreme Court On Obscene Speech, Broadcasting and
The First Amendment
Obscene speech is NOT protected by the First Amendment and the broadcasting
of obscene material is banned at all times of the day.
Further, the broadcast of obscene material violates criminal statutes.
Indecency Defined
"Language or material which depicts or describes, in terms
patently offensive as measured by contemporary community standards for the
broadcast medium, sexual or excretory activities or organs."
A 'Safe Harbor' For Children
The United States Court of Appeals for the District of Columbia
Circuit
has upheld the Federal Communications Commission's authority to restrict
the broadcast of indecent material.
"The broadcasting of indecent material is restricted to a specific
time of day
when there is no reasonable risk that children might be in the broadcast
audience."
Action for Children's Television v. FCC, 852 F.2d 1332 (D.C. Cir.1988)
The "Safe Harbor" period is recognized as 6:00 A.M.
until 10:00 P.M.
The purpose of The Safe Harbor Period is to protect children from indecent
broadcasting over public airwaves.
18 USC, Section 1464
Section 1464 of 18 U.S.C. provides: "Whoever utters any obscene, indecent,
or profane language by
means of radio communication shall be fined not more than $10,000 or imprisoned
not more than two
years, or both."
In addition, the FCC may impose a civil forfeiture for each violation of
the same
statute. 47 U.S.C. § 503(b)(1)(D); see id. § 503(b)(2)(A)
(maximum forfeiture penalty of $25,000 for each violation but not in excess
of $250,000 for any continuing violation).
The Commission's imposition of a penalty for the broadcast of indecent material-defined
by the Commission as "patently offensive descriptions of sexual or
excretory activities or organs as measured by contemporary
community standards for the broadcast medium"- is not inconsistent
with the first amendment.
See FCC v. Pacifica Foundation, 438 U.S. 726 (1978)
(in which the Court also held that the FCC's ruling speech indecent does
not violate 47 U.S.C. § 326,
which prohibits censorship by the agency).
'Statement Of Principals'
National Association of Broadcasters
In a Statement of Principles for radio and television broadcasters,
the National Association of Broadcasting warns broadcasters that,
"obscenity is not constitutionally protected
and is unacceptable for broadcasts at all times."
Further, relative to children in a broadcast audience, the NAB states,
"where significant child audiences can be expected,
particular care should be exercised when addressing sexual themes."
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