indecency
indecency

Indecency, unlike obscenity, does not meet the Miller test and therefore enjoys First Amendment protection to a large degree. Indecent material is allowed in print media and over the Internet, but may be restricted in broadcast media depending upon circumstances. However, as with any speech-based regulation, the government must demonstrate a compelling interest for restriction and accomplish that interest with the least restrictive means.

Title 18 of the United States Code (18 U.S.C. § 1464) establishes rules with respect to broadcasting, and gives the Federal Communications Commission (FCC) authority to enforce the law. The Commission may revoke licenses of broadcasters who do not comply with the law, impose fines, and issue warnings.

FCC's rule 47 U.S.C. § 312 sets forth acceptable limits for indecent broadcasts. They are permitted at times of day when children are not likely to be in the audience. The "safe harbor" for both television and radio is between 10 p.m. and 6 a.m.

As to what represents indecency in broadcasting, the FCC has defined it as 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 organs or activities. Explaining the "community standards" requirement, the commission has said: "The determination as to whether certain programming is patently offensive is not a local one and does not encompass any particular geographic area. Rather, the standard is that of an average broadcast viewer or listener and not the sensibilities of any individual complainant."

The first time the U.S. Supreme Court had to decide on a broadcast indecency case was in 1978. In FCC v. Pacifica Foundation (438 U.S. 726), the Court reaffirmed FCC's jurisdiction over radio broadcasting.

Read about Pacifica

 

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Last updated Thursday December 5, 2002