Commentary: It's a medical condition, not an indecency

Daily Record, The (Baltimore), Jun 11, 2009

U.S. Representative Jim Moran of Virginia recently introduced legislation that would classify as indecent a television or radio broadcast of an advertisement for medication to treat erectile dysfunction (ED). While the bill will not ban the ads altogether, in essence it would mean they could not be aired between 6:00 a.m. and 10:00 p.m. Arguably, a broadcast station that ran such an ad outside the permitted time slot would be subject to a substantial fine, as was the hapless TV network that broadcast Janet Jackson's wardrobe malfunction and incurred a $500,000 FCC fine.

It is hard to support this bill, the intended purpose of which is to require the Federal Communications Commission to revise its interpretation of policies relating to the broadcast of indecent material to include a common medical condition.

ED is generally the result of one or more medical conditions -- diabetes, kidney disease, chronic alcoholism, multiple sclerosis and vascular disease, to name a few. Common medicines, such as blood pressure drugs, antihistamines and antidepressants, can also cause ED. ED affects the quality of life of both men and women, and it impacts their families.

It is estimated that ED affects between 15-20 million U.S. men. Each day, more men are seeking and getting medical help for this treatable condition. The National Ambulatory Medical Care Agency estimated that in 1985 for every 1,000 men living in the U.S. with this condition, only 7.7 men saw doctors for treatment; by 1999 that rate had tripled. The reason for this increase is the publicity given to the development and availability of drugs, such as Viagra, that treat this condition -- much of which publicity is by way of the public broadcast of commercials for ED treatment.

Awareness that ED is a treatable condition continues to expand, in large part because of the relatively tasteful and subdued ads that are broadcast on TV and radio for the prescription medicines that treat this condition. This broadcast forum should not be closed because discussing a dysfunctional sex organ on TV makes a congressman squeamish. Nor should these ads be removed from the airwaves because they use the word "erectile." We need to face facts: Most adult Americans engage in, and enjoy, sex. ED is a bar to that enjoyment, and these ads provide a valuable, educational service, albeit through a commercial message. Banning them from the airwaves sends a dangerous message and deprives viewers of access to important information.

In a landmark 1976 decision, the U.S. Supreme Court held unconstitutional a Virginia statute under which any pharmacist who advertised drug prices was deemed guilty of unprofessional conduct and risked losing his or her license. It held that consumers are entitled to receive drug prices through advertising.

Following this decision, many federal circuits expressed doubt over the extent to which the First Amendment protected commercial speech -- speech with a call for consumer action. But the Supreme Court expanded and expounded on its new commercial speech doctrine. In 1977 it applied this right to receive information to real estate, holding that would-be buyers of real estate are no less interested in receiving information than are buyers of other commodities.

State bar association restrictions on truthful lawyer advertising fell soon after, also on the grounds that free flow of commercial information is a benefit to consumers and society.

In the Virginia case, the Supreme Court held:

"Advertising, however tasteless and excessive its sometimes may seem, is nonetheless dissemination of information as to who is producing and selling what product, for what reason and at what price. ... To this end, the free flow of commercial information is indispensable ...."

Today, truthful advertising is protected as speech under the First Amendment.

Obscene and misleading advertising can be banned outright; indecent advertising can be relegated to "adult" hours. The FCC also has the undisputed authority to relegate indecent, noncommercial content to adult hours, but indecent broadcasts have been defined to mean patently offensive language as measured by community standards, or sexual or excretory activities or organs in terms patently offensive as measured by contemporary community standards for the broadcast medium.

ED ads do not trip this standard; if they did, there would be no need for a new category of indecent content.

At issue is not whether the FCC or the courts have the power to regulate the broadcast of indecent speech, whether in the form of public comment or commercial ads -- they do. The real question is whether ads, produced with relative tact and discretion, that provide truthful information about a serious but treatable medical condition should be legislated into a category of indecency and then outlawed during normal TV viewing hours.

If TV advertising of a medical condition relating to a sensitive part of the human body, without showing the body part, is indecent, public service announcements advising people to get tested for colon cancer could next be banished due to the mental images these ads might conjure up to the congressman from Virginia. Likewise, TV spots advising women to be tested, or inoculated against, the human papillomavirus, or commercials for drugs to treat herpes simplex virus. Simply put, these are conditions viewers need to know more about, and TV and radio are two of the best ways to deliver the message to the broadest possible audience.