New report analyzes FCC indecency crackdown

Journal Record, The (Oklahoma City), Nov 26, 2007 by Marie Price

The Federal Communications Commission's decision to take a more active stance in regulating broadcast indecency has fostered two opposing reactions, according to a new report from the First Amendment Center: renewal of the argument that such regulation should be held unconstitutional, versus a push to extend the FCC's reach into cable and satellite media and regulation of televised violence.

"The commission's renewed emphasis on indecency after a period of relative quiescence may have the effect of triggering a debate on more sweeping and fundamental questions than merely whether a woman's bare back can be shown on television during times when children may be in the audience," wrote Lili Levi, the report's author and professor at the University of Miami School of Law.

Levi said that for several years following the U.S. Supreme Court 1978 decision in FCC v. Pacifica, the "seven dirty words" case, the agency limited the use of its regulatory authority to punishing that kind of speech.

She said the commission later extended its efforts to "shock jocks" and programming that targeted particular groups, such as gays.

Programs with sexual themes and references continued to flourish without much interference until the past few years, Levi says, when the FCC's approach changed radically, from the $550,000 fine levied against CBS for Janet Jackson's 2004 Super Bowl "wardrobe malfunction" to huge fines lobbed at show-radio programs. The CBS fine is on appeal.

"The increases in fines were designed to address the apparently unanimous commission view that broadcasters, instead of being deterred from airing indecency, had absorbed their prior forfeitures merely as minor costs of doing business," Levi writes.

Other changes include revision of the FCC complaint process to ease the burdens of complainants, and what Levi refers to as development of what appeared to be categories of "per se indecency." The latter includes the use of certain swear words during live broadcasts, such as awards programs.

"In addition, after 40 years, the commission found broadcasters liable for airing not only indecent, but also profane programming, with the term 'profane' defined to include far more than blasphemous expression," Levi states in the report.

Levi contends that the FCC's invigorated indecency policy appears to have had a chilling effect on programming, which she says is evident in increased timidity in news programs and self-censorship among broadcasters.

Levi's paper traces the responses of broadcast networks, including legal challenges to some of the FCC's indecency decisions. The FCC itself has appealed a lower court decision in a case involving the Fox network to the U.S. Supreme Court.

Levi says that the success of initiatives to expand FCC regulation will last only as long as the need to fight off additional regulation is seen as real by the media.

"Ultimately, as in the prior history of FCC content regulation, it will be a complex interaction of legal rules, marketplace developments, technology, consumer pressure and politics that will influence the extent of indecency and violence available on mass media," Levi concludes.

The First Amendment Center, located at Vanderbilt University in Nashville, Tenn., is an operating program of the Freedom Forum. Levi's full report is available at: www.firstamendmentcenter.org.