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Friday, April 26, 2013

Regulation of Broadcast Indecency: Background and Legal Analysis

Kathleen Ann Ruane
Legislative Attorney

During the 2012 Super Bowl Halftime Show, the rapper M.I.A. (stage name for the artist Mathangi “Maya” Arulpragasm) made an indecent gesture during her live performance, reigniting the debate over whether the FCC could punish broadcasters for fleeting indecency. M.I.A.’s performance echoed two other prominent television events that have been the subject of ongoing litigation. The airing of an expletive by Bono (stage name for the artist Paul David Hewson) during the 2003 Golden Globe Awards, as well as the “wardrobe malfunction” that occurred during the 2004 Super Bowl halftime show, gave broadcast indecency prominence at the Federal Communications Commission (FCC) and in the 109th and 110th Congresses. These incidents resulted in the enactment of P.L. 109-235 (2006), which increased the penalties for broadcast indecency by tenfold. They also resulted in protracted litigation that was the subject of two recent Supreme Court decisions that eventually reversed the fines the FCC had issued in these cases.

Federal law makes it a crime to utter “any obscene, indecent, or profane language by means of radio communication” (18 U.S.C. §1464). Violators of this statute are subject to fines and imprisonment of up to two years; the FCC may enforce this provision by forfeiture or revocation of a broadcaster’s license. The FCC has found that for material to be “indecent,” it “must describe or depict sexual or excretory organs or activities,” and “must be patently offensive as measured by contemporary community standards for the broadcast medium.” The federal government’s authority to regulate material that is “indecent” but not obscene was upheld by the Supreme Court in Federal Communications Commission v. Pacifica Foundation, which found that prohibiting such material during certain times of the day does not violate the First Amendment.

In 1992, Congress enacted P.L. 102-356 (47 U.S.C. §303 note), Section 16(a) of which, as interpreted by the courts, requires the FCC to prohibit “indecent” material on broadcast radio and broadcast television from 6 a.m. to 10 p.m. Under P.L. 109-235, “indecent” broadcasts are now subject to a fine of up to “$325,000 for each violation or each day of continuing violation, except that the amount assessed for any continuing violation shall not exceed a total of $3,000,000 for any single act or failure to act.” Fines may be levied against broadcast stations, but not against broadcast networks. The FCC appears to have the statutory authority to fine performers as well (up to $32,500 per incident), but has taken the position that “[c]ompliance with federal broadcast decency restrictions is the responsibility of the station that chooses to air the programming, not the performers.”

The federal restriction on “indecent” material applies only to broadcast media. This stems from the fact that there are a limited number of broadcast frequencies available. The Supreme Court, therefore, interprets the First Amendment in a manner that allows the government to regulate speech via broadcast media to a greater extent than via other media. This report discusses the legal evolution of the FCC’s indecency regulations, and provides an overview of how the current regulations have been applied. Two recent cases have considered to what extent broadcast indecency can be regulated before First Amendment rights are impermissibly infringed. Fleeting expletives and images like those in the Golden Globes and Super Bowl halftime show cases have been subject to government enforcement action, and those enforcement actions have been challenged as violations of the First Amendment. The Supreme Court in Pacifica left open the question whether broadcasting an occasional expletive, as in the Bono case, would justify a sanction. As noted above, the Supreme Court has recently agreed to hear a case that may decide this question.

Date of Report: April 16, 2013
Number of Pages: 24
Order Number: RL32222
Price: $29.95

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