Indecent broadcasting coarsens. The indecency warps sexual attitudes and behaviors of impressionable youths unless healthy parental guidance and example arrest the process. The emotional and psychological traumas and preoccupations of adolescents exposed to sex will eclipse scholastic pursuits. Their adult sex lives may be twisted and dysfunctional. Thus, the U.S. Supreme Court concluded in Pacifica Foundation v. FCC (1978) that indecent broadcasting could be banned from the airwaves when children were likely to part of the audience. Writing for a plurality, Justice John Paul Stevens acknowledged the compelling government interest in the “well-being of its youth.”
Since Pacifica Foundation, public concern over indecency has spread from broadcasting to cable and satellite TV. Video over the Internet is around the corner. At present, the First Amendment’s protection of free speech has deterred or thwarted efforts to regulate indecency in the nonbroadcast media. The Supreme Court declared in Preferred Communications v. City of Los Angeles (1986), for example, that cable operators enjoy free speech rights superior to broadcasters and akin to the print media: “Cable television partakes of some aspects of speech and the communication of ideas as do traditional enterprises of newspaper and book publishers, public speakers, and pamphleteers.”
Congress, nevertheless, is flirting with extending the broadcast indecency ban to nonbroadcasters. The objective is commendable, but a statutory approach is misplaced. The superior solution is to give parents greater control of what their children watch, an initiative recently undertaken by the National Cable Television Association (NCTA).
A legal ban on nonbroadcast indecency is fraught with difficulty. By ambiguity, the indecency definition chills untroublesome speech, like realistic expletives in “Saving Private Ryan.” According to the Federal Communications Commission, indecency includes language or material that depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory organs or activities.
The patently offensive determination pivots on the average broadcast viewer nationwide, not on the fastidious sensibilities of a Miss Manners or the vulgarity of Penthouse’s Larry Flynt. Five commissioners in Washington, D.C., however, have but the faintest idea of what passes for patent offensiveness outside their own parochial experiences. They make indecency rulings more by visceral reaction and political calculation than by evenhanded and predictable standards. The commission’s wildly inexact definition smacks of Supreme Court Justice Potter Stewart’s befuddlement in seeking to define obscenity in Jacobellis v. Ohio (1964): “I know it when I see it.”
That definitional elusiveness invites discriminatory enforcement by the commission to retaliate against political opponents or adversaries. Media owners who support the president or commission policies will be treated with kid gloves. In contrast, the government’s detractors will be required to incur enormous legal fees and suffer damage to reputation in fending off trivial indecency allegations. The free marketplace of ideas will be chilled and the media’s constitutional role to scrutinize and scold government will be crippled.
As a companion to its indecency ban, the commission prohibits broadcast profanity. The enforcement evils are comparable in chilling free speech and inviting retaliating against critics or political enemies. Profanity is vaguely defined to include “personally reviling epithets naturally tending to provoke violent resentment or denoting language so grossly offensive to members of the public who actually hear it as to amount to a nuisance.” In fashioning this definition, the commission ruled that one use of a four-letter word in the context of a live Golden Globe Awards Program constituted profanity.
Despite their potential for great First Amendment mischief, extending indecency and profanity prohibitions may be justified if the nonbroadcast media neglect private initiatives to curtail children’s access. Parents must be the focus because they exercise paramount influence.
The program announced by NCTA last Wednesday sets a standard to which other nonbroadcast media may repair. Congress should await the results.
During the coming year, more than 70 cable networks and thousands of cable systems will air public service announcements valued at more than $200 million to educate parents on controlling a child’s viewing menu. Cable operators will conduct workshops to teach parents about cable’s control tools. The TV ratings icon found on the upper left portion of the TV screen for the initial 15 seconds of rated programs will be enlarged by 70 percent and repeated at commercial break intervals. Retail outlets and cable operators will distribute parent-friendly control manuals and information. Cable operators serving 85 percent of all cable subscribers have pledged to provide free channel blocking technology.
If parents are provided the means, the vast majority will exercise good judgment in shielding their children from premature and shocking exposure to sex or profanity. If private industry is forthcoming on that score, federal legislation will be unnecessary. As Kyle McSlarrow, president of National Cable and Telecommunications Association amplified, “Technology available today means that we don’t have to choose between protecting the First Amendment and protecting children; instead, parents can make the right choices for their families.”
Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and the Lichfield Group. He was general counsel of the Federal Communications Commission under President Ronald Reagan.