Comm Lawy v22#1 spr2004 6/22/04 3:07 PM Page 1

The Big Chill? Congress and the FCC Crack Down on Indecency KATHERINE A. FALLOW

The infamous 2004 Super Bowl Although the FCC has been given rela- Super Bowl Fallout half-time incident—in which Justin tively wide latitude to censor broadcast The Janet Jackson incident provided a Timberlake ripped open Janet Jackson’s programming, the U.S. Supreme Court well-timed boost to the FCC’s ongoing bustier and briefly exposed her right has invalidated parallel government attempts to enforce indecency regula- breast to the millions of viewers watch- attempts to regulate indecency on cable tions more stringently. A week before ing the CBS broadcast—triggered an television and the Internet. The history of the Super Bowl, the FCC issued a Notice election-year political frenzy to “clean the FCC’s indecency enforcement, of Apparent Liability for Forfeiture up the airwaves.” Calling the half-time notable for its vague standards and incon- (NAL) against Clear Channel broadcast a “classless, crass, deplorable sistent outcomes, underscores why the Communications, Inc., proposing to fine stunt,” Federal Communications courts should be concerned about allow- the broadcaster $755,000 for airing inde- Commission (FCC) Chairman Michael ing the government to police program cent material on the Bubba the Love K. Powell vowed to begin a “thorough content on the airwaves. Sponge show.4 This fine, which was the and swift” investigation.1 Television and The FCC’s historical record on largest single penalty for indecency in radio executives summoned before con- indecency is troublesome enough. In the FCC’s history, followed an October gressional panels were grilled on what a radical departure from its previous 2, 2003, NAL in which the FCC pro- steps they would take to make the air- indecency framework, however, the posed fining Infinity Broadcasting waves more suitable for family viewing. FCC in March 2004 issued a ruling that Operations, Inc., some $357,000 for the Congress hastened to act on legislation demonstrates its willingness to restrict broadcast of an Opie & Anthony radio to toughen the FCC’s enforcement of its program content even further. Reversing show featuring a contest that awarded broadcast indecency rules, which prohib- an earlier decision of its Enforcement points for engaging in sexual activity in it the airing of indecent, obscene, or pro- Bureau, the FCC held that NBC violat- public places—one of which included St. fane material between 6 A.M. and 10 P.M. ed the indecency rules when it broadcast Patrick’s Cathedral in New York.5 On On March 11, 2004, by a vote of live the 2003 Golden Globe Awards pro- March 12, 2004, the FCC released an 391-22, the House passed its version of gram, during which the singer Bono said NAL in the amount of $247,500 against the Broadcast Indecency Act of 2004, “fucking brilliant” while accepting his Clear Channel for its broadcast of the which would increase the maximum award. Although it declined to fine Elliott in the Morning show.6 Other than statutory penalty for an indecency vio- NBC in light of the break from FCC the $1.7 million paid by Infinity in 1995 lation from $27,500 to $500,000 and precedent, the Commission held that to settle numerous indecency complaints authorize the FCC to begin license rev- Bono’s statements constituted actionable related to Howard Stern’s show,7 these ocation proceedings against broadcast- indecency and profanity. recent fines represent far and away the ers with three or more indecency fines.2 Apparently abandoning its previous largest forfeitures the FCC has ever A similar bill pending before the Senate contextual approach to indecency, the sought for airing material found to be would authorize the FCC to consider FCC held that the use of any variant of indecent. extending its indecency rules to program- the objectionable word would essential- The FCC has made clear that these ming judged to be gratuitously violent.3 ly be considered indecent and profane recent large fines are part of a concerted The proposed legislation would increase per se and suggested a bright-line rule effort to increase the deterrent effect of its the scope of the FCC’s enforcement would be applied to other expletives. A indecency rules on broadcasters. Several power by, among other things, authoriz- wide range of media groups have Commissioners have explicitly stated that ing the Commission to fine individual attacked the FCC’s decision, which is the FCC’s previous enforcement regime speakers as well as broadcast licensees. vulnerable on numerous fronts under the lacked any teeth and that radio and televi- Politicians and regulators have been First Amendment. sion broadcasters treated the fines as a nearly unanimous in their clamor for The obvious result of the FCC’s new “cost of doing business.”8 As part of its stronger indecency enforcement. Politics approach to enforcement, and recent effort to add muscle to its existing aside, the notion that the federal govern- of Congress’s consideration of tough statutory authority, the FCC announced ment can regulate the content of what is legislation increasing indecency penal- plans to impose forfeiture penalties for said on television and radio is widely ties by orders of magnitude, is to chill each individual indecent utterance instead accepted as a legal given. But such a con- speech. Indeed, this effect could be felt of one fine per program.9 The pending tent-based speech regime is an anomaly immediately after the Super Bowl when Senate bill would give the FCC explicit in First Amendment jurisprudence. several radio and television networks statutory authority for such an approach.10 cancelled certain programming and The FCC has also warned that repeat Katherine A. Fallow (kfallow@jenner. implemented time-delay devices in an offenders will endanger their licenses if com) is a partner in the Washington, effort to protect themselves against violations continue.11 Individual D.C., office of Jenner & Block LLP. potential indecency violations. Commissioners have also advocated Number 1 • Volume 22 • Spring 2004 • American Bar Association • Communications Lawyer • 1 “The Big Chill? Congress and the FCC Crack Down on Indecency” by Katherine A. Fallow, published in Communications Lawyer, Volume 22, No.1, Spring 2004 © 2004 by the American Bar Association. Reproduced by permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. Comm Lawy v22#1 spr2004 6/22/04 3:07 PM Page 25

greater consideration of a broadcaster’s any twenty-four-hour period.18 did not violate the FCC’s indecency record on indecency during license Both bills direct the FCC to consider rules.25 In so holding, the Enforcement renewal decisions.12 Increasingly, the full specific factors in assessing fines for Bureau relied on previous FCC decisions Commission has ignored its own obscene, indecent, or profane utterances, holding that “fleeting and isolated” pro- Enforcement Bureau and undertaken including whether the material was live fane remarks did not rise to the level of review of high-profile indecency cases in or scripted; whether the violator had time actionable indecency.26 an effort to add further gravitas to the to review the recorded or scripted materi- Politicians, however, seized upon FCC’s anti-indecency campaign. al, or in the case of live or unscripted pro- the decision’s statement that Bono used The Commissioners are essentially gramming, whether the violator had a the word “as an adjective or expletive united on the issue of a stricter reasonable basis to believe that it would to emphasize an exclamation”27 as an indecency enforcement regime. Those contain obscene, indecent, or profane example of bureaucratic reasoning gone who have disagreed with the FCC’s recent material; whether a time-delay mecha- awry. Both Houses of Congress quickly indecency rulings have done so usually on nism was used; and whether the material passed resolutions urging the full the grounds that they believed the penal- was broadcast during programming Commission to reverse the Bureau’s ties were not stiff enough.13 Shortly after directed at, or reasonably expected to order, and a bill was introduced in the the Super Bowl, all five Commissioners include, children.19 House proposing to amend 18 U.S.C. testified at hearings before the House and In an obvious response to the Super § 1464 to proscribe eight specific pro- Senate in support of the Broadcast Bowl incident, the proposed legislation fanities in all their forms, “including Decency Enforcement Act of 2004.14 contemplates that fines would increase in verb, adjective, gerund, participle, and Chairman Powell has been especially proportion to the size of the audience or infinitive forms.”28 20 vocal, touting the recent large fines market served. The bills also authorize During the recent congressional hear- imposed on Clear Channel and Infinity the FCC to fine individual artists and ings, several Commissioners vowed to and promising to maintain an aggressive speakers in addition to licensees for will- overturn the Bureau’s decision, making 15 ful or intentional obscene, indecent, or good on their promise when the FCC stance toward broadcast indecency. He 21 also highlighted a recent ruling imposing profane utterances. The proposed legis- released an opinion and order on March the maximum statutory fine on Young lation directs the FCC to consider past 18, 2004. Rejecting the Bureau’s argu- indecency violations in license renewal Broadcasting in San Francisco for its ment that Bono used the expletive for decisions and directs the FCC to institute broadcast of a morning news show fea- nonsexual emphasis, the full license revocation proceedings for turing the performers from the theater Commission held that the word has an licensees that have paid or been ordered production Puppetry of the Penis, in inherent sexual meaning—regardless of by a court to pay fines in three or more the context.29 The FCC then overturned which one performer was inadvertently indecency proceedings.22 16 nearly twenty years of its own precedent exposed for less than a second. Noting The Senate version of the Broadcast that this was only the second time in the holding that isolated or accidental use of Decency Enforcement Act contains the word “fuck” is not actionable inde- FCC’s history that it enforced an inde- even more controversial provisions. cency.30 Following its decision, the FCC cency fine against a television station, One provision directs the FCC to inves- Powell said that the Commission’s held that “broadcasters are on clear tigate whether technologies such as the notice that, in the future, they will be action “opened up a new front in our V-chip successfully block violent pro- effort to protect children.”17 subject to potential enforcement action gramming, and, if they are found to be for any broadcast of the ‘F-word’ or a deficient, authorizes the FCC to restrict variation thereof in situations such as that Congress Jumps on the violent programming in the same way it here.”31 The Commission justified its Indecency Bandwagon 23 restricts indecent programming. action by pointing out that the problem Not to be outdone, Congress is also Another would roll back the recent con- could be easily fixed—broadcasters considering legislation that would adopt troversial media consolidation rules for could implement a delay system to cen- many of the FCC’s policy recommen- one year and direct the FCC to study sor potentially actionable language.32 dations and—in several instances—go the relationship between media consoli- The FCC also concluded that Bono’s several steps further. Although the 24 dation and indecent programming. utterances constituted profanity, a Commissioners asked for a tenfold separate offense under § 1464. Noting increase in the current maximum statu- The Golden Globe Awards Decision that its previous rulings on profane tory fine of $27,500, H.R. 3717, the Although Janet Jackson received more speech were limited to blasphemy, a legislation passed by the House, would media coverage, the FCC’s Enforcement revelation that surprised many broad- increase the maximum to $500,000 for Bureau unleashed the current political and casters and media watchers, the FCC each indecency violation. The Senate regulatory campaign to beef up the FCC’s held that it was now extending profanity version would increase the statutory indecency regulations by holding that the to cover “vulgar and coarse” language, maximum to $275,000 for the first singer Bono’s use of expletives during the including the word that attracted so indecency violation with increasing live 2003 broadcast of the Golden Globe much attention during the Golden fines up to $500,000 for the third. The Awards did not constitute actionable inde- Globe Awards.33 Now, Senate would give the FCC explicit cency. In an October 2003 decision, the authority to fine violators for each [b]roadcasters are on notice that the FCC in Enforcement Bureau held that the broad- the future will not limit its definition of pro- obscene, indecent, or profane utterance, cast of the U2 front man’s use of the word fane speech to those words and phrases that up to a maximum of $3 million during “fuck” twice during his acceptance speech contain an element of blasphemy or divine

Number 1 • Volume 22 • Spring 2004 • American Bar Association • Communications Lawyer • 25 “The Big Chill? Congress and the FCC Crack Down on Indecency” by Katherine A. Fallow, published in Communications Lawyer, Volume 22, No.1, Spring 2004 © 2004 by the American Bar Association. Reproduced by permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. Comm Lawy v22#1 spr2004 6/22/04 3:07 PM Page 26

imprecation, but, depending on the context, Similarly, ABC volunteered to institute By a five-to-four vote, the Supreme will also consider under the definition of a five-second delay during the broadcast Court agreed, holding that the FCC’s “profanity” the “F-word” and those words (or variants thereof) that are as highly offensive of the Academy Awards show, to guard actions did not violate the First as the “F-word,” to the extent such language against any Bono-like moments—a first Amendment. Although recognizing that a is broadcast between 6 a.m. and 10 p.m. We in the history of the traditionally live content-based speech restriction on other will analyze other potentially profane words 39 34 Oscars broadcast. Clear Channel, the media would trigger the strictest constitu- or phrases on a case-by-case basis. subject of several of the largest recent tional scrutiny, the Court held that the Although the FCC found that Bono’s fines, immediately suspended or fired FCC’s regulation of indecency on the statements constituted actionable indecen- several of its disc jockeys, including airwaves was subject to a more lenient cy and profanity, the Commission did not Todd Clem, the host of Bubba the Love standard because of “special problems” fine NBC for the broadcast because its Sponge, and veteran shock jock Howard associated with broadcasting.47 decision represented a departure from Stern.40 Plainly, these events have been First, according to the Court, the 35 FCC precedent. driven in large part by the FCC’s “uniquely pervasive presence” of radio On April 19, 2004, a coalition of increased enforcement activity and and television in Americans’ lives and broadcasters and performers—including Congress’s apparent intent to increase homes meant that the First Amendment Viacom, the owner of CBS and MTV; the penalties significantly. rights of the broadcast speaker must in News Corp.; the American Civil Liberties some circumstances yield to the privacy Union; the Screen Actors Guild; the interests of what the Court viewed as a Recording Industry Association of The FCC and the Seven Dirty Words captive audience.48 Thus, “[b]ecause the America; and others—petitioned the Section 1464 of the federal criminal FCC for reconsideration of the deci- code, which traces its roots to the Radio broadcast audience is constantly tuning sion.36 The group argued that the FCC’s Act of 1927, makes it a crime to utter in and out, prior warnings cannot com- any “obscene, indecent, or profane pletely protect the listener or viewer reversal of scores of cases finding that 49 “isolated” or “fleeting” expletives did language by means of radio communi- from unexpected program content.” 41 not constitute indecency chilled broad- cation.” Under 47 U.S.C. § 503(b), the Second, the Court concluded that the casters’ speech and that the newly FCC is authorized to impose a forfei- government was entitled to restrict announced “profanity” regime was ture penalty on broadcast licensees for indecent broadcast programming to hopelessly vague. The group also asked each violation of § 1464, in an amount protect children. “The ease with which the FCC to require complaints to be not to exceed $27,500.42 Section 312 of children may obtain access to broadcast supported by credible evidence, to the Communications Act further authoriz- material, coupled with the concerns rec- stop imposing fines on a “per utter- es the FCC to revoke broadcast licenses ognized in Ginsberg”—the govern- ance” basis, and to “seriously examine” for violations of § 1464.43 ment’s interest in helping parents keep whether the system of content regulation The FCC’s regulations prohibit radio indecent material from their children— announced in the decision is compatible and television licensees from broadcasting “amply justify special treatment of with the First Amendment. indecent material between 6 A.M. and indecent broadcasting.”50 10 P.M.44 The FCC defines “broadcast indecency” as “language or material, Self-Censorship Takes Hold Outright Ban Not Permissible that, in context, depicts or describes, in The chilling potential of the FCC’s Despite the apparent breadth of its terms patently offensive as measured existing indecency rules—and the rationale, the Court took pains to by contemporary community standards current effort to make those rules emphasize that its holding was a for the broadcast medium, sexual or even stricter—was made apparent in “narrow” one.51 The Court’s decision excretory activities or organs,”45 a stan- the immediate aftermath of the Super in Sable Communications v. FCC dard that has remained essentially Bowl. In the week following that further clarified the contours of the unchanged since the Supreme Court broadcast, NBC announced that it FCC’s authority over indecent pro- upheld the FCC’s authority to enforce would not air a scene for an upcoming gramming, holding that although the indecency restrictions in FCC v. ER episode showing the exposed breast FCC could regulate broadcast indecency, Pacifica Foundation.46 of an eighty-year-old woman receiving a flat-out ban on such material would Pacifica involved the broadcast medical care.37 NBC made this decision not be permissible.52 In Sable, the Court even though the scene would not have of George Carlin’s “Filthy Words” struck down FCC regulations imple- violated the FCC regulations for most monologue, in which the comedian menting a federal statute banning all regions of the country, where it is aired discussed the “seven dirty words” that indecent telephone messages. Noting cannot be uttered on the airwaves. A after 10 P.M., during the so-called safe that “[s]exual expression which is inde- harbor period in which indecency is per- man alleging that he had heard the mono- cent but not obscene is protected by the mitted. For its part, CBS removed Janet logue at 2:00 in the afternoon, while First Amendment,” the Court applied Jackson (but not Justin Timberlake) from driving with his young son, filed a strict scrutiny to the FCC’s regulations. the list of announcers for the Grammy complaint with the FCC. The FCC In holding that the FCC’s total ban on Awards and implemented a five-second found the monologue “patently offen- so-called dial-a-porn services was not video delay to prevent the broadcast of sive” and indecent and concluded that the least restrictive means to further the any potentially risky images.38 NBC it had the authority to regulate indecent government’s purported compelling also implemented a ten-second delay speech as a nuisance by “channeling” interest, the Court rejected the FCC’s during the 2004 Golden Globe Awards. the times at which it could be broadcast. argument that its regulations were

Number 1 • Volume 22 • Spring 2004 • American Bar Association • Communications Lawyer • 26 “The Big Chill? Congress and the FCC Crack Down on Indecency” by Katherine A. Fallow, published in Communications Lawyer, Volume 22, No.1, Spring 2004 © 2004 by the American Bar Association. Reproduced by permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. Comm Lawy v22#1 spr2004 6/22/04 3:07 PM Page 27

consistent with the Court’s decision ACT III. Believing that it is “no longer Communications Decency Act of 1996 in Pacifica. “Pacifica is readily responsible for courts to provide lesser (CDA) that criminalized the transmission distinguishable,” the Court explained, First Amendment protection to broad- or display of “indecent” and “patently “because it did not involve a total ban casting based on its alleged ‘unique offensive” material.62 The Court held that on broadcasting indecent material.”53 attributes,’” Chief Judge Edwards would the statutory definitions of indecency and The precise scope of the FCC’s have invalidated the regulations under patently offensive, which mirror the existing indecency rules was hammered the same level of strict scrutiny applica- FCC’s indecency definitions, were out in a series of D.C. Circuit rulings in ble to cable.58 As Chief Judge Edwards unconstitutionally vague and lacked the the late 1980s and early 1990s. In 1988, observed, television cannot rationally be constitutional safeguards of the Miller in response to a D.C. Circuit decision distinguished from other media, especially obscenity standard. As a result, the Court vacating an FCC order that limited the cable, on the standard grounds advanced concluded, enforcement of the CDA broadcast of indecent programming to a to justify reduced First Amendment pro- would chill constitutionally protected safe harbor period of midnight to 6 A.M., tection for broadcast speech—spectrum speech, a result that was not justified Congress passed a law directing the FCC scarcity, pervasiveness, and accessibility even by the government’s interest in to restrict indecent programming on a to children. protecting children.63 As the Court has twenty-four-hour basis.54 The D.C. Circuit Judge Wald agreed with Chief Judge frequently cautioned, “[t]he Government responded in kind, striking down FCC Edwards and separately emphasized that may not reduce the adult population regulations that enforced a twenty-four- the FCC’s contextual, fact-specific test for to only what is fit for children.”64 hour ban on indecent broadcast program- indecency was fraught with danger for Although these concerns would appear to ming.55 Congress reacted again, passing would-be broadcast speakers: apply equally to regulation of indecency legislation requiring the FCC to restrict Because the FCC insists that indecency deter- on the airwaves, the Court distinguished indecent programming to a safe harbor minations must be made on a case-by-case its holding from Pacifica on the “broad- period between midnight and 6 A.M., but basis and depend upon a multi-faceted consid- cast is different” theory. eration of the context of allegedly indecent allowing public broadcast stations to material, broadcasters have next-to-no guid- broadcast indecent material beginning ance in making complex judgment calls. Even Government As Censor at 10 P.M. an all clear signal in one case cannot be relied In 2001, the FCC issued a Policy In Action for Children’s Television v. upon by broadcasters unless both the substance of the material they aired and the context in Statement designed “to provide guid- FCC (Act III), the D.C. Circuit, ruling en which it was aired were substantially similar.59 ance to the broadcast industry” on banc, invalidated the special treatment for the FCC’s indecency regulations (the As discussed below, these concerns public broadcast stations but otherwise policy statement did not apply to have been more than borne out in the upheld the FCC’s regulations banning the obscenity or profane language).65 The FCC’s indecency enforcement decisions. airing of indecent material between 6 A.M. Policy Statement set forth a general test and 10 P.M. Reiterating that the two for indecency and gave numerous “unique characteristics” ascribed to What’s the Difference? examples of the FCC’s previous rulings in broadcasting—pervasiveness in the home It is difficult to reconcile the relatively an attempt to provide benchmarks for and particular accessibility to children— lenient judicial treatment of the FCC’s broadcasters. In many ways, however, justified more relaxed First Amendment indecency restrictions with the Supreme the Policy Statement itself illustrates the protection, the court nonetheless purport- Court’s recent cases rejecting Congress’s contradictions inherent in the FCC’s inde- ed to review the regulations under strict attempts to regulate indecent speech on cency standard. Despite the stated intent scrutiny, albeit a strict scrutiny that took cable and the Internet. In United States v. to provide broadcasters with a map to into account the “unique context of the Playboy Entertainment Group, Inc., the navigate around potential indecency lia- broadcast medium.”56 The court conclud- Court invalidated a section of the 1996 bility, the FCC’s rulings before and after ed that the government had two com- Telecommunications Act that required the Policy Statement have only served to pelling interests justifying the regulations: cable operators to scramble or restrict muddy the waters. an interest in supporting parental authority hours of access to cable channels primari- The Policy Statement articulated the and an independent interest in the well- ly dedicated to sexually explicit or inde- FCC’s general framework for making being of children. Applying what was cent programming.60 Confirming that indecency determinations. According to essentially a less-than-strict scrutiny, the indecent speech is entitled to full First the FCC, court held that the FCC’s safe harbor Amendment protection (at least as to [i]ndecency findings involve at least two fun- period was narrowly tailored to further adults), the Court held that the statute damental determinations. First, the material the government’s compelling interests imposed a content-based speech restric- alleged to be indecent must fall within the sub- because it adequately balanced the First tion subject to strict scrutiny. The Court ject matter scope of our indecency definition— Amendment rights of adults with the gov- that is, the material must describe or depict then concluded that the law’s flat ban on sexual or excretory organs or activities. . . . ernment’s interest in protecting children indecent speech during certain times— Second, the broadcast must be patently offen- from indecent speech.57 Since ACT III, even given concerns about the speech’s sive as measured by contemporary community the FCC has enforced its indecency rule, intrusion into the home—was not the least standards for the broadcast medium.66 47 C.F.R. § 73.3999, which prohibits the restrictive means to further the govern- In assessing allegedly indecent pro- broadcast of “any material which is inde- ment’s interest in promoting parental gramming, the FCC explained that cent” between 6 A.M. and 10 P.M. 61 authority or protecting children. [t]he principal factors that have proved signifi- Chief Judge Edwards and Judge Wald Further, in Reno v. ACLU, the Court cant in our decisions to date are (1) the explic- authored separate dissents in struck down provisions of the itness or graphic nature of the description of

Number 1 • Volume 22 • Spring 2004 • American Bar Association • Communications Lawyer • 27 “The Big Chill? Congress and the FCC Crack Down on Indecency” by Katherine A. Fallow, published in Communications Lawyer, Volume 22, No.1, Spring 2004 © 2004 by the American Bar Association. Reproduced by permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. Comm Lawy v22#1 spr2004 6/22/04 3:07 PM Page 28

sexual or excretory organs or activities; (2) List case, the FCC stated that “although view, the announcer stated, “‘This was whether the material dwells on or repeats at the actual exposure of the performer’s rape. Yeah, don’t you ever come around length descriptions of sexual or excretory organs or activities; (3) whether the material penis was fleeting in that it occurred for here Jim Bakker or we’re going to cut that appears to pander or is used to titillate, or less than a second, the manner in which thing off.’” The licensee argued that the whether the material appears to have been pre- the station presented this material estab- broadcast was “newsworthy” and thus not sented for its shock value.67 lishes, under the third factor, that, in its indecent. The Mass Media Bureau reject- The FCC nonetheless cautioned that overall context, the material was appar- ed this argument, concluding that even if “[n]o single factor generally provides the ently intended to pander to, titillate and the program concerned an event in the basis for an indecency finding.”68 To the shock viewers.”73 news, “the particular material broadcast contrary, the FCC emphasized that each The relative merits of Schindler’s was not only exceptionally explicit and indecency investigation is a highly fact- List and Puppetry of the Penis are cer- vulgar, it was...presented in a pandering specific inquiry in which the context of tainly debatable. But the distinction manner. In short, the rendition of the the broadcast is key. As Judge Wald drawn by the FCC appears to be based details of the alleged rape was, in context, warned in her dissent in ACT III, howev- on an assessment of the quality of the patently offensive.’”79 Judge Wald cited er, this case-by-case, contextual approach programming—an approach for resolv- this decision in particular when she is precisely what makes the FCC’s inde- ing indecency complaints that is highly observed: “As this one case exemplifies cency rules likely to chill protected subjective and extremely difficult to so well, in enforcing the indecency regula- speech. Rather than facing “the herculean predict. The FCC candidly admits that tions the FCC takes upon itself a delicate task of predicting on the basis of a series the “merit” of a program is one of the and inevitably subjective role of drawing of hazy case-by-case determinations by factors that it considers in conducting fine lines between ‘serious’ and ‘pander- 74 the FCC which side of the line their pro- its indecency analysis. In many of its ing’ presentations. And even a ‘serious’ 69 indecency determinations, therefore, the presentation of newsworthy material is gram will fall on,” it is likely that many 80 broadcasters will instead choose to “air” FCC’s decision essentially boils down emphatically not shielded from liability.” on the side of caution—a scenario that to whether the FCC believes the show The FCC’s own confusion over where was borne out in the wake of the Super is of high or low quality. The FCC to draw the line between meritorious and Bowl half-time show. makes this determination, moreover, sanctionable is also apparent in a recent without the safeguards of more strin- case in which the FCC reversed itself on gent constitutional tests, like the “lacks whether the material at issue was action- When Is Nudity Indecent? serious literary, artistic, political, or able indecency. First, in 2001 the FCC The examples used by the FCC in the scientific value” requirement of the issued an NAL against a radio station for Policy Statement only serve to high- obscenity standard.75 If the FCC is the broadcast of the rap song “Your light the difficulties in applying the permitted to sanction speech that it Revolution” by poet and rap artist Sarah FCC’s contextual test. For example, in finds distasteful, the result will be a Jones.81 Ms. Jones described the song, the Policy Statement, the FCC noted chilling of protected speech.76 which contained explicit as well as that it had declined to sanction as inde- Supporters of the FCC’s role in implied sexual references, as a parody of cent a prime-time broadcast of policing the airwaves cite to the most rap music that degrades women. The Schindler’s List, which included full extreme examples of shock jock radio licensee defended the indecency allegation frontal nudity.70 The FCC ruled that as justification for strict indecency rules. on the ground that the song was a political “full frontal nudity is not per se inde- But even if such speech were somehow commentary that was not indecent. The cent” and concluded that, given the full entitled to lesser protection—a view that Enforcement Bureau initially rejected that context of the film and the warnings ignores the value of such shows to the argument, holding that “considering the accompanying the broadcast, the nude millions of people who listen to them— entire song, the sexual references appear scene was not indecent.71 there is no guarantee that the FCC will be to be designed to pander and shock and By contrast, in its recent decision able to distinguish between high- and are patently offensive.”82 The imposing the maximum statutory fine on low- quality speech. More importantly, Enforcement Bureau conceded that the a San Francisco television station for a this view ignores that in some instances, song may have some value as social com- segment on the Puppetry of the Penis so-called indecency “is inseparable from mentary, but relying on FCC precedent production, the FCC held that a brief and the ideas and viewpoints conveyed, or that social value “is not in itself disposi- apparently accidental exposure of separable only with loss of truth or tive” in an indecency investigation, issued a performer’s penis was indecent.72 expressive power.”77 an NAL for the song’s broadcast.83 The show’s hosts had informed viewers Even if it were permissible in theory Two years later, however, the about the subject matter of the upcoming to distinguish between “legitimate” and Enforcement Bureau rescinded its segment, had warned that parents might “illegitimate” programming, the FCC’s earlier ruling.84 None of the underlying want to prevent their children from view- judgments in this area are often question- facts had changed during the intervening ing the interview, and issued several able. For example, in 1990 the FCC fined time. Sarah Jones had sued the FCC in apologies after the accidental exposure. a radio station for indecency, based on a federal district court for violation of her Rejecting the licensee’s arguments that program in which the disc jockey read First Amendment rights, but the suit was these actions, coupled with the extremely from an interview Jessica Hahn gave to dismissed as unripe. The Enforcement brief time of exposure, meant that the Playboy Magazine, detailing her allega- Bureau struggled to explain its reversal: indecency complaint should be resolved tions that she was raped by the Reverend “While this is a very close case, we now in the same manner as the Schindler’s Jim Bakker.78 After reading from the inter- conclude that the broadcast was not

Number 1 • Volume 22 • Spring 2004 • American Bar Association • Communications Lawyer • 28 “The Big Chill? Congress and the FCC Crack Down on Indecency” by Katherine A. Fallow, published in Communications Lawyer, Volume 22, No.1, Spring 2004 © 2004 by the American Bar Association. Reproduced by permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. Comm Lawy v22#1 spr2004 6/22/04 3:07 PM Page 29

indecent because, on balance and in It is difficult to predict how a regulated as well.96 Indeed, during the context, the sexual descriptions in the similar program would be treated in controversy over the Super Bowl, some song are not sufficiently graphic to the wake of the FCC’s Golden Globe politicians and Commissioners signaled warrant sanction. For example, the Awards decision. On the one hand, the that they might be willing to extend inde- most graphic phrase (‘six foot blow FCC did not overrule the John Gotti cency regulation to cable, and have at the job machine’) was not repeated.”85 decision; on the other hand, the FCC least urged cable operators to develop The Enforcement Bureau’s later was careful to state that even a program voluntary standards and offer cable pack- decision does a better job of respecting with political or social value that con- ages limited to “family friendly” pro- the First Amendment, but the reversal tained the expletive may be found to be gramming.97 Yet even these proponents demonstrates the confusion and ambi- actionably indecent.92 Although the FCC have acknowledged that extending inde- guity created by the FCC’s current brushed aside concerns about the poten- cency restrictions to cable would likely indecency test.86 tial chilling effect of its new bright-line face a tough constitutional challenge. rule, the uncertainty surrounding the A Shift in FCC Policy? FCC’s standard will almost certainly Zero Tolerance Leads to Deep Freeze The FCC’s recent decision in Golden deter broadcasters from airing programs The Commission has yet to rule in the Globe Awards, coupled with its other containing any of the “seven dirty Janet Jackson case. As the foregoing dis- efforts to increase indecency enforcement, words,” even if they form an integral part cussion makes clear, the FCC’s history signals a stricter approach to indecency of important political, social, or artistic of indecency enforcement makes it diffi- proceedings that favors bright-line rules speech. This represents a radical depar- cult, if not impossible, to predict the out- over a multifaceted contextual test. In ture from the Commission’s previous come of a particular indecency proceed- holding that the broadcast of Bono’s state- approach to indecency, a departure that ing. Nevertheless, it seems likely—given ments was indecent, the FCC explicitly raises serious constitutional problems. the FCC’s vow to enforce its indecency rejected nearly two decades of its own rules more stringently, political pres- precedent holding that an isolated or acci- Protecting Innocent Ears? sure from Congress, and Chairman dental utterance of an expletive, often The FCC has justified its new bright- Powell’s personal commitment to shore made in the context of live programming, line approach as a way to protect chil- up indecency enforcement—that the was not actionably indecent.87 Now, “[t]he dren, noting that children are “harmed” FCC will find the brief exposure of fact that the use of this word may have by any exposure to indecent material, Janet Jackson’s breast to be actionably been unintentional is irrelevant; it still has regardless of whether the word appears indecent. To reach this result, the FCC the same effect of exposing children to in a bona fide news program, an enter- will have to work around its previous indecent language.”88 The FCC stopped tainment show, or works of significant holding that nudity is not per se indecent. just short of holding that any utterance of social value.93 Even accepting the It would not be surprising if the FCC the word fuck is per se indecent, but given empirical assumption that children are takes the same position as it did in the breadth of the FCC’s ruling, it is diffi- so injured, this justification is seriously, Golden Globe Awards and adopts a cult to conceive of a circumstance in if not fatally undermined, by the fact bright-line rule that any nudity broad- which such an utterance would fall that approximately 85 percent of cast during the proscribed period will outside the rule.89 In fact, the FCC American households get their televi- give rise to a potential enforcement action. warned that from now on, any licensee sion through cable or satellite.94 As As with the Golden Globe Awards deci- that broadcasts the word will be subject Chief Judge Edwards reasoned in his sion, such an approach would impose stiff to an indecency proceeding, and sug- ACT III dissent, “[i]f exposure to ‘inde- fines on even accidental or fleeting nudity gested that licensees wishing to avoid cency’ really is harmful to children, and would call into question the viability any potential indecency liability should then one wonders how to explain of decisions like that in the Schindler’s implement a delay/censoring system for congressional schemes that impose List case, in which the FCC allowed a all live broadcasts.90 iron-clad bans of indecency on broad- television network to broadcast the film The precise scope of the FCC’s casters, while simultaneously allowing in its entirety, including a scene featuring new rule is not clear. Although the a virtual free hand for the real cul- full frontal nudity. Commission overruled prior decisions prits—cable operators.”95 Cable The FCC’s new zero-tolerance holding that fleeting or accidental television is equally if not more inva- approach to indecency will have a utterances were not indecent, the FCC let sive in the lives of Americans, and just significant chilling effect on speech, an stand another decision in which it refused as accessible to children. It is therefore effect that will be magnified if Congress to sanction intentional and repeated use difficult to discern any logical basis for approves the proposed increases in the of the word fuck during a news program. treating broadcast and cable differently maximum fine for indecency violations. In that case, National Public Radio for purposes of content regulation. Coupled with the FCC’s intention to broadcast wiretap recordings from the The lack of any principled distinction impose fines for each separate utterance, John Gotti trial in which the defendant between the two plainly could cut two the increased maximum fine could trans- used the expletive both as a noun and an ways, however. Although some may late to an enormous penalty for a single adjective ten times in seven sentences. argue that the “broadcast is different” program. For widely broadcast programs, The FCC concluded that the newscast rationale should be abandoned and the the penalties could be staggering. If the “was an integral part of a bona fide news FCC indecency restrictions invalidated, Super Bowl half-time show were found story” and therefore was not gratuitous, others will claim that the lack of a real to be indecent, the FCC could conceiv- pandering, or “patently offensive.”91 difference means that cable should be ably fine each of the nearly 200 televi-

Number 1 • Volume 22 • Spring 2004 • American Bar Association • Communications Lawyer • 29 “The Big Chill? Congress and the FCC Crack Down on Indecency” by Katherine A. Fallow, published in Communications Lawyer, Volume 22, No.1, Spring 2004 © 2004 by the American Bar Association. Reproduced by permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. Comm Lawy v22#1 spr2004 6/22/04 3:07 PM Page 30

sion stations owned by or affiliated with ment of Chairman Powell); In re Clear 2056. CBS that broadcast the show. The deter- Channel, 2004 WL 135980, ¶ 21 20. Id. rent effect of such an outcome would be (“Particularly in light of Clear Channel’s his- 21. Id. enormous—which essentially is the tory of violations of the indecency rules, we 22. See H.R. 3717. result sought by the FCC. In its crusade also take this opportunity to reiterate our 23. See News Release, Senate Committee recent admonition . . . that serious multiple on Commerce, Science, and Transportation, to eradicate “smut” from the airwaves, violations of our indecency rule by broad- Committee Passes Broadcast Decency the FCC has created a regime that will casters may well lead to the commencement Enforcement Act, (Mar. 9, 2004), chill significant amounts of protected of license revocation proceedings.”); id. (dis- http://commerce.senate.gov/newsroom/print- speech, as demonstrated in the wake of senting statement of Commissioner Copps) able.cfm?id = 218845 (summarizing and pro- the Super Bowl. (“I believe the FCC should have designated viding links to amendments to S. 2056 these cases for a hearing on the revocation of passed by Committee). Endnotes these stations’ licenses.”); id. (separate state- 24. Id. Given the controversy concerning ment of Commissioner Adelstein) (“[T]his is the consolidation rules, it is possible that the 1. News Release, FCC, FCC Chairman the type of serious repeated behavior that I latter amendment may delay or even derail Powell Calls Super Bowl Halftime Show a believe would warrant initiation of license the Senate legislation. See Jeremy Pelofsky, “Classless, Crass, Deplorable Stunt.” Opens revocation hearings.”); In re Infinity Broad. Sen. McCain Seeks to Resolve Indecency Bill, Investigation (Feb. 2, 2004), available at Operations, Inc., 18 F.C.C.R. 19954, ¶ 19 FORBES.COM, Mar. 30, 2004, at 2004 WL 187406; see also News Release, (“We reiterate our recent statement that http://www.forbes.com/markets/newswire/20 FCC, FCC Commissioner Copps Deplores ‘additional serious violations by Infinity may 04/03/30/rtr1317470.html. Outrageous Super Bowl Stunt (Feb. 2, 2004) well lead to a license revocation proceed- 25. In re Complaints Against Various (stating that thus far the FCC had failed in its ing.’”) (citation omitted); id. (dissenting Broadcast Licensees Regarding Their Airing duty to “slow down Big Media’s race to the statement of Commissioner Copps) (“I of the “Golden Globe Awards” Program, 18 bottom”); News Release, FCC, FCC believe we should designate these cases for a F.C.C.R. 19859 (2003). Commissioner Martin Supports the Opening hearing on the possible revocation of these 26. Id. ¶6. of Investigation Into Broadcast of Super stations’ licenses, as provided for by section 27. Id. ¶5. Bowl Halftime Show (Feb. 2, 2004), avail- 312(a)(6) of the Communications Act.”). 28. H.R. Res. 482, 108th Cong. (2003) able at 2004 WL 193087 (calling on the 12. Feb. 11 House Hearing, supra note 11 (resolution urging FCC to overturn the FCC to interpret its indecency rules more (statement of Commissioner Copps). Golden Globes decision and step up its “stringently”). 13. E.g., In re Clear Channel, 2004 WL enforcement activities); S. Res. 283, 108th 2. H.R. 3717, 108th Cong. (2004). 135980 (dissenting statement of Cong. (2003) (same); H.R. 3687, 108th 3. S. 2056, 108th Cong. (2004). Commissioner Copps); id. (separate state- Cong. (2003) (profanity bill). 4. In re Clear Channel Broad. Licenses, ment of Commissioner Martin); In re 29. In re Complaints Against Various Inc., Notice of Apparent Liability for Infinity, 18 F.C.C.R. 19954 (dissenting state- Broadcast Licensees Regarding Their Airing Forfeiture, FCC 04–17, 2004 WL 135980 ment of Commissioner Copps); id. (separate of the “Golden Globe Awards” Program, (FCC rel. Jan. 27, 2004). statement of Commissioner Martin). FCC 04–43, 2004 WL 540339, ¶ 8 (FCC 5. In re Infinity Broad. Operations, Inc., 14. Feb. 11 House Hearing, supra note 11 Rel. Mar. 18, 2004). Notice of Apparent Liability for Forfeiture, (statement of Commissioner Abernathy). 30. Id. ¶¶ 12, 17. 18 F.C.C.R. 19954 (2003). Commissioners Martin and Copps also 31. Id. ¶ 17. Although not quite clear, the 6. In re AMFM Radio Licenses, L.L.C., linked the increase in indecency with the “situations such as that here” appear to mean Notice of Apparent Liability for Forfeiture, recent media consolidation rules, stating that live broadcasts. FCC 04–47 (FCC rel. Mar. 12, 2004). increased consolidation deprived local affili- 32. Id. 7. Associated Press, Congress Considers ates of the independence to reject program- 33. Id. ¶¶ 13, 14. TV, Radio Indecency Fines, CNN.COM, at ming they considered inappropriate for their 34. Id. ¶ 14 (footnote omitted). http://www.cnn.com/2004/ALLPOLI- communities. See id. (written statements of 35. Id. ¶ 15. TICS/01/28/congress.decency.ap (Jan. 28, Commissioners Martin and Copps). All five 36. See Petition for Reconsideration of 2004). According to the Center for Public Commissioners submitted substantially the American Civil Liberties Union, et al., FCC Integrity, Howard Stern’s show has account- same testimony during a hearing the same File No. ED-03–1H-0110 (filed Apr. 19, ed for half of the $3.95 million in indecency day before the Senate Committee on 2004), available at http://www.pfaw.org/ fines imposed by the FCC since 1990. Frank Commerce, Science, and Transportation. See pfaw/dfiles/file_316.pdf. Ahrens, FCC Says Bono Profanity Violated Protecting Children from Violent and 37. Bill Carter, After Furor, Janet Jackson Standards, but Won’t Fine NBC, WASH. Indecent Programming: Hearing Before the Is to Be Cut from Grammy Awards, N.Y. POST, Mar. 19, 2004, at E1. Senate Comm. on Commerce, Science, and TIMES, Feb. 5, 2004, at C8. 8. E.g., In re Clear Channel, 2004 WL Transp., 108th Cong. (Feb. 11, 2004). 38. Id. 135980 (dissenting statement of 15. Id. (statement of Chairman Powell). 39. Lisa de Moraes, Flags Keep Dropping Commissioner Copps) (“‘Cost of doing busi- 16. In re Young Broad. of San Francisco, on Super Bowl Stunt, WASH. POST, Feb. 5, ness fines’ are never going to stop the Inc., Notice of Apparent Liability for 2004, at C1; see also Tom Shales, A Clean media’s slide to the bottom.”). Forfeiture, FCC 04–16, 2004 WL 135993 and Boring Sweep, WASH. POST, Mar. 1, 9. E.g., id. (separate statement of (FCC rel. Jan. 27, 2004). 2004, at C1 (criticizing this year’s Oscars Chairman Powell). 17. Feb. 11 House Hearing, supra note 11 broadcast as particularly boring, due in part 10. S. 2056, 108th Cong. (2004). (statement of Chairman Powell). to the political crusade against indecency 11. See, e.g., The Broadcast Decency 18. S. 2056, 108th Cong. (2004); Jonathan unleashed by the Super Bowl: “That some- Enforcement Act of 2004: Hearing on H.R. Krim, Senators Move Forward on Tougher one was sitting with a finger poised on a san- 3717 Before the House Comm. on Hearing of Indecency Standards, WASH. POST, Mar. 9, itizing switch suggests in itself that we are to the Subcomm. on Telecommunications and 2004, available at http://www.washington have a new wave of heavy-duty censorship in the Internet of the House Comm. on Energy post.com/wp-dyn/A43113–2004Mar9.html. America and all caused by the exposure of & Commerce, 108th Cong. (Feb. 11, 2004) 19. H.R. 3717, 108th Cong. (2004); S. one breast.”); see also Bill Carter, Pushed on [hereinafter Feb. 11 House Hearing] (state- Number 1 • Volume 22 • Spring 2004 • American Bar Association • Communications Lawyer • 30 “The Big Chill? Congress and the FCC Crack Down on Indecency” by Katherine A. Fallow, published in Communications Lawyer, Volume 22, No.1, Spring 2004 © 2004 by the American Bar Association. Reproduced by permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. Comm Lawy v22#1 spr2004 6/22/04 3:07 PM Page 31

Obscenity, Networks Turn to Delays, Even has made an affirmative decision to expose affirmatively requested access.). on Sports, N.Y. TIMES, Mar. 15, 2004. himself or herself to broadcast speech. 61. Playboy Entm’t, 529 U.S. at 811–15; Although each of the major networks prom- Pacifica, 438 U.S. at 765 (Brennan, J., dis- id. at 814 (“[E]ven where speech is indecent ised to begin time-delay on many live shows, senting) “[B]ecause the radio is undeniably a and enters the home, the objective of shield- CBS announced that it would present the public medium, these actions are more prop- ing children does not suffice to support a NCAA men’s basketball tournament live, erly viewed as a decision to take part, if only blanket ban if the protection can be accom- after reports that CBS would delay broadcast as a listener, in an ongoing public discourse.” plished by a less restrictive alternative.”). by ten seconds in response to the FCC’s Id. Given the small burden imposed on an 62. 521 U.S. 844, 858–59 (1997). increased indecency enforcement. CBS Says offended viewer by changing the channel, 63. Id. at 874 (“Given the vague contours No to Broadcast Delays, N.Y. TIMES, Mar. majoritarian tastes should not be permitted of the coverage of the statute, it unquestion- 16, 2004, at http://www.nytimes.com/2004/ “completely to preclude a protected message ably silences some speakers whose messages 03/16/sports/ncaabasketball/16CBS.html. from entering the homes of a receptive, unof- would be entitled to constitutional protec- 40. Clear Channel Suspends Howard fended minority.” Id. at 766 (Brennan, J., dis- tion.”). Stern’s Show, N.Y. TIMES, Feb. 26, 2004, at senting). “I would place the responsibility 64. Id. at 875 (internal quotations, alter- http://www.nytimes.com/2004/02/26/busi- and the right to weed worthless and offensive ations, and citations omitted). ness/media/26radio.html. Stern’s show communications from the public airways 65. In re Industry Guidance on the FCC’s remains on the air, however, and Infinity where it belongs and where, until today, it Case Law Interpreting 18 U.S.C. § 1464 and Broadcasting has announced that it will con- resided: in a public free to choose those com- Enforcement Policies Regarding Broadcast tinue to broadcast his show on its roughly munications worthy of its attention from a Indecency, Policy Statement, 16 F.C.C.R. forty affiliate stations. John Maynard, Infinity marketplace unsullied by the censor’s hand.” 7999, ¶ 1 (2001) (Policy Statement). Stations to Keep Howard Stern on the Air, Id. at 772 (Brennan, J., dissenting). 66. Policy Statement ¶¶ 7–8 (citations WASH. POST, Feb. 27, 2004, at C1. 49. Pacifica, 438 U.S. at 748; see id. at omitted). The FCC’s “community standards” 41. 18 U.S.C. § 1464. 748–49 (“To say that one may avoid further test does not take into account differences 42. 47 U.S.C. § 503(b); 47 C.F.R. offense by turning off the radio when he between local communities but instead § 1.80(b)(1). hears indecent language is like saying that applies a nationwide broadcast community 43. 47 U.S.C. § 312(a)(6). the remedy for an assault is to run away after standard that references the average broad- 44. 47 C.F.R. § 73.3999. the first blow.”). cast viewer or listener. Id. ¶ 7; see also 45. In re Industry Guidance on the FCC’s 50. Id. at 750. WPBN/WTOM License Subsidiary, Inc. Case Law Interpreting 18 U.S.C. § 1464 and 51. Id. (WPBN-TV and WTOM-TV), 15 F.C.C.R. Enforcement Policies Regarding Broadcast 52. Sable Communications of Cal., Inc. v. 1838, 1841 (2000). Indecency, Policy Statement, 16 F.C.C.R. FCC, 492 U.S. 115, 127 (1989). 67. Policy Statement ¶ 10. 7999, ¶ 4 (2001). 53. Id. 68. Id. 46. FCC v. Pacifica Foundation, 438 U.S. 54. See Action for Children’s Television v. 69. Action for Children’s Television v. 726 (1978). FCC, 58 F.3d 654 (D.C. Cir. 1995) (en banc) FCC, 58 F.3d 125 (D.C. Cir. 1995) (Wald, 47. The Court also noted that it had previ- (ACT III) (summarizing history of FCC’s J., dissenting). ously sanctioned greater regulation of the air- indecency regulations); see also Action for 70. Id. ¶ 21 (citing WPBN/WTOM License waves based on the scarcity of broadcast Children’s Television v. FCC, 852 F.2d 1332 Subsidiary, Inc. (WPBN-TV and WTOM- spectrum. Id. at 731; see also Red Lion (D.C. Cir. 1988) (ACT I); Action for TV), 15 F.C.C.R. 1838 (2000)). Broad. Co. v. FCC, 395 U.S. 367, 388 (1969) Children’s Television v. FCC, 932 F.2d 1504 71. Id. (“Where there are substantially more individ- (D.C. Cir. 1991) (ACT II). 72. In re Young Broadcasting of San uals who want to broadcast than there are 55. ACT II, 932 F.2d at 1509. Francisco, 2004 WL 135993. The licensee frequencies to allocate, it is idle to posit an 56. ACT III, 58 F.3d at 660. argued that the “very brief exposure was unabridgeable First Amendment right to 57. Id. at 666–67. The majority in fact held accidental and unintentional, and that the broadcast comparable to the right of every that a midnight to 6 A.M. safe harbor was nar- complained-of material was part of the bona individual to speak, write, or publish.”); FCC rowly tailored, but then found that the gov- fide news coverage of the ‘Puppetry of the v. League of Women Voters of Cal., 468 ernment had failed to justify its disparate Penis.’” Id. ¶ 4 (footnote omitted). U.S. 364, 377 (1984) (“The fundamental dis- treatment for public stations, “leaving us with 73. Id. ¶ 12. tinguishing characteristic of the new medium no choice but to hold that the section is 74. See In re WPBN/WTOM License of broadcasting that, in our view, has unconstitutional insofar as it bars the broad- Subsidiary, Inc. (WPBN-TV and WTOM- required some adjustment in First casting of indecent speech between the hours TV), 15 F.C.C.R. 1838, ¶ 10 (2000); In re Amendment analysis is that ‘[b]roadcast fre- of 10 P.M. and midnight.” Id. at 669. Chief Industry Guidance on the FCC’s Case Law quencies are a scarce resource [that] must be Judge Edwards argued that the majority’s Interpreting 18 U.S.C. § 1464 and portioned out among applicants.’”) (quoting holding in this regard was incoherent: “While Enforcement Policies Regarding Broadcast CBS, Inc. v. Democratic Nat’l Comm., 412 a 6 A.M. to 10 P.M. ban is certainly less Indecency, Policy Statement,16 F.C.C.R. U.S. 94, 101 (1973)) (alteration in original). speech restrictive than a 6 A.M. to midnight 7999, ¶ 20 (2001) (“The apparent purpose for 48. Id. at 748 (“Patently offensive, indecent ban, it seems absurd to suggest that they are which material is presented can substantially material presented over the airwaves con- both the least restrictive means.” Id. at 683 affect whether it is deemed to be patently fronts the citizen, not only in public, but also n.36 (Edwards, C.J., dissenting). offensive as aired.”). in the privacy of the home, where the indi- 58. Id. at 671 (Edwards, C.J., dissenting). 75. See Reno v. ACLU, 521 U.S. 844, 873 vidual’s right to be left alone plainly out- 59. Id. at 685 (Wald, J., dissenting) (inter- (noting that the “societal value” prong “criti- weighs the First Amendment rights of an nal quotations omitted). cally limits the uncertain sweep of the intruder.). Compare Cohen v. California, 403 60. 529 U.S. 803 (2000); see also Denver obscenity definition”). U.S. 15 (1971); Erznoznik v. Jacksonville, Area Educ. Telecomms. Consortium v. FCC, 76. Hustler Magazine v. Falwell, 485 U.S. 422 U.S. 205 (1975). In dissent, Justice 518 U.S. 727 (1996) (invalidating FCC regu- 46 (1988); Cohen v. California, 403 U.S. 15 Brennan argued that the captive audience lation that required cable system operators to (1971). analogy was not tenable. A person who segregate “patently offensive” programming 77. Denver Area Educ. Telecomms. brings a radio or television into their home and block such programming unless a viewer Consortium v. FCC, 518 U.S. 727, 805

Number 1 • Volume 22 • Spring 2004 • American Bar Association • Communications Lawyer • 31 “The Big Chill? Congress and the FCC Crack Down on Indecency” by Katherine A. Fallow, published in Communications Lawyer, Volume 22, No.1, Spring 2004 © 2004 by the American Bar Association. Reproduced by permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. Comm Lawy v22#1 spr2004 6/22/04 3:07 PM Page 32

(1996) (Kennedy, J., dissenting in part); id. dissenting). of South Carolina, Inc. (WYBB (FM)), 7 (“In artistic or political settings, indecency 81. In re KBOO Foundation, 16 F.C.C.R. F.C.C.R. 1595 (MMB 1992) and Lincoln may have strong communicative content, 10731 (EB 2001). Dellar, Renewal of License for Stations protesting conventional norms or giving an 82. Id. ¶8. KPRL (AM) and KDDB (FM), 8 F.C.C.R. edge to a work by conveying ‘otherwise 83. Id. 2582, 2585 (ASD, MMB1993)). inexpressible emotions.’”) (quoting Cohen, 84. In re KBOO Foundation, 18 F.C.C.R. 88. In re “Golden Globe Awards,” 2004 403 U.S. at 26) (Kennedy, J., dissenting in 2472 (EB 2003). WL 540339, ¶ 9. part). It is worth noting that humor in partic- 85. Id. ¶9. 89. Id. ¶6. ular is a victim of the FCC’s indecency regu- 86. In a similar reversal, the Enforcement 90. Id. ¶ 17. lations. Comedy often relies on controversial Bureau in 2002 reversed an earlier NAL 91. Id. ¶ 9 n.25 (citing Peter Branton, 6 subjects and uses subversion of dominant based on the airing of the “radio edit” ver- F.C.C.R. 610 (1991)). political and cultural norms, including sexual sion of Eminem’s “Slim Shady” song. In re 92. Id. (“This is not to suggest that the fact and scatological taboos, for comic effect (see Citadel Broad. Co., 17 F.C.C.R. 483 (EB that a broadcast had a social or political value Lenny Bruce, George Carlin, South Park). It 2002), rescinding In re Citadel Broad. Co., would necessarily render use of the ‘F-Word’ is thus not surprising that many of the pro- 16 F.C.C.R. 11839 (EB 2001). In the NAL, permissible.”). grams targeted under the FCC’s indecency the Enforcement Bureau found that the “edit- 93. Id. rules have been humorous. The FCC has ed version contains unmistakable offensive 94. See Feb. 11 House Hearing, supra note imposed fines on licensees for the broadcast sexual references . . . that appear intended to 11 (statement of Commissioner Copps). of Monty Python’s “Sit on My Face” song, pander and shock.” 16 F.C.C.R. 11838, ¶ 6. 95. Action for Children’s Television v. and a song known as the “Penis Envy Song.” A year later, however, after reviewing the FCC, 58 F.3d 654, 672 (D.C. Cir. 1995) See Policy Statement ¶¶ 16, 23. The FCC has licensee’s response to the NAL “and having (Edwards, C.J, dissenting). explained, however, that “‘humor is no more again reviewed the relevant case law,” the 96. For example in Denver Area an absolute defense to indecency . . . than is Enforcement Bureau disagreed with its origi- Educational Telecommunications music or any other one component of com- nal analysis and found that the same words Consortium v. FCC, several Justices munication.’” Id. ¶ 7 (quoting WIOD, Inc. that supported the earlier NAL were not observed that the “special characteristics” of (WIOD (AM)), 6 F.C.C.R. 3704 (MMB indecent. In direct contrast to its earlier deter- television used to justify broadcast indecency 1989)). The FCC is not kidding: in the case mination, the Enforcement Bureau found that regulation are present in the case of cable. of the FCC’s indecency rulings, humor the language in the radio edit version was 518 U.S. 727, 744 (1996) (Breyer, J., writing appears to be a significant liability. “oblique,” not sufficiently graphic or explicit, for the plurality); id. at 774 (Stevens, J., con- 78. Id. and did not appear to be intended to pander curring); id. at 776 (Souter, J., concurring) 79. Id. to, titillate, or shock the audience. 17 97. E.g., Feb. 11 House Hearing, supra 80. Action for Children’s Television v. F.C.C.R. 483, ¶¶ 10, 11. note 11 (statements of Chairman Powell and FCC, 58 F.3d 685 (D.C. Cir. 1995) (Wald, J., 87. Id. ¶ 17 (citing L.M. Communications Commissioners Copps and Martin).

Number 1 • Volume 22 • Spring 2004 • American Bar Association • Communications Lawyer • 32 “The Big Chill? Congress and the FCC Crack Down on Indecency” by Katherine A. Fallow, published in Communications Lawyer, Volume 22, No.1, Spring 2004 © 2004 by the American Bar Association. Reproduced by permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.