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Indecent

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Definitions Edit

U.S. Supreme Court Edit

Indecent, according to the Supreme Court, "merely refers to nonconformance with accepted standards of morality."[1] Sexual expression that is deemed to be indecent, but does not rise to the level of obscenity, is protected by the First Amendment.[2]

Federal Communications Commission Edit

The Federal Communications Commission has defined indecent in the contexts of dial-a-porn and radio and television broadcasting to mean the description or depiction of "sexual or excretory activities or organs" in a "patently offensive" manner "as measured by contemporary community standards."[3]

Overview Edit

Indecent material is protected by the First Amendment unless it constitutes obscenity or child pornography. Except on broadcast radio and television, indecent material that is protected by the First Amendment may be restricted by the government only “to promote a compelling interest” and only by “the least restrictive means to further the articulated interest.”[4] The Supreme Court has “recognized that there is a compelling interest in protecting the physical and psychological well-being of minors. This interest extends to shielding minors from the influence of literature that is not obscene by adult standards.”[5]

There are federal statutes in effect that limit, but do not ban, indecent material transmitted via telephone, broadcast media, and cable television.[6]

There are also many state statutes that ban the distribution to minors of material that is “harmful to minors.” Material that is “harmful to minors” under these statutes tends to be defined more narrowly than material that is “indecent,” in that material that is “harmful to minors” is generally limited to material of a sexual nature that has no serious value for minors. The Supreme Court has upheld New York’s “harmful to minors” statute.[7]

Litigation Edit

In 1997, the U.S. Supreme Court declared unconstitutional two provisions of the Communications Decency Act of 1996 that would have prohibited indecent communications, by telephone, fax, or e-mail, to minors, and would have prohibited use of an “interactive computer service” to display indecent material “in a manner available to a person under 18 years of age.”[8] This latter prohibition would have banned indecency from public (i.e., non-subscription) websites.

The CDA was succeeded by the Child Online Protection Act (COPA), [9] which differs from the CDA in two main respects: (1) it prohibits communication to minors only of “material that is harmful to minors,” rather than material that is indecent, and (2) it applies only to communications for commercial purposes on publicly accessible websites. “Material that is harmful to minors” is defined as material that (A) is prurient, as determined by community standards, (B) “depicts, describes, or represents, in a manner patently offensive with respect to minors,” sexual acts or a lewd exhibition of the genitals or post-pubescent female breast, and (C) “lacks serious literary, artistic, political, or scientific value for minors.”

COPA never took effect because, in 2007, a federal district court found it unconstitutional and issued a permanent injunction against its enforcement; in 2008, the U.S. Court of Appeals affirmed, finding that COPA “does not employ the least restrictive alternative to advance the Government’s compelling interest” and is also vague and overbroad.[10] In 2009, the Supreme Court declined to review the case.

In 2003, at the Golden Globe Awards, the singer Bono, in response to winning an award, said, “this is really, really f[***]ing brilliant.” The FCC found the word to be indecent, even when used as a modifier, because, “given the core meaning of the ‘F-Word,’ any use of that word or a variation, in any context, inherently has a sexual connotation....”[11] The question arises whether this ruling is consistent with the First Amendment, in light of the fact that the Supreme Court has left open the question whether broadcasting an occasional expletive would justify a sanction.[12]

In 2006, the FCC took action against four other television broadcasts that contained fleeting expletives, but on June 4, 2007, the U.S. Court of Appeals for the Second Circuit found “that the FCC’s new policy regarding ‘fleeting expletives’ is arbitrary and capricious under the Administrative Procedure Act.”[13] The court also noted that expletives “are often used in everyday conversation without any ‘sexual or excretory’ meaning.” Having overturned the FCC policy on statutory grounds, the court had no occasion to decide whether the agency had also violated the First Amendment. The U.S. Supreme Court has agreed to hear the case.

In 2008, the U.S. Court of Appeals for the Third Circuit overturned the FCC’s fine against CBS broadcasting station affiliates for broadcasting Janet Jackson’s exposure of her breast for nine-sixteenths of a second during a SuperBowl halftime show.[14] The court found that the FCC had acted arbitrarily and capriciously in finding the incident indecent; the court did not address the First Amendment question.

References Edit

  1. Federal Comm. Comm'n v. Pacifica Found., 438 U.S. 726, 740 (1978)(full-text).
  2. See Sable Communications of Cal., Inc. v. Federal Comm. Comm'n, 492 U.S. 115, 126 (1989)(full-text).
  3. 438 U.S. at 732. See also In the Matter of Industry Guidance on the Commission’ s Case Law Interpreting 18 U.S.C. §1464 and Enforcement Policies Regarding Broadcast Indecency, File No. EB-00-IH-0089 (Apr. 6, 2001).
  4. Sable, 492 U.S. at 126.
  5. Id.
  6. 47 U.S.C. §223(b) (commercial dial-a-porn), 18 U.S.C. §1464, 47 U.S.C. §303 note (broadcast media), 47 U.S.C. §§531(e), 532(c)(2), 532(h), 559-561 (cable television). The Supreme Court declared section 561 unconstitutional in Playboy Entertainment Group, Inc. v. United States, 529 U.S. 803 (2000).
  7. Ginsberg v. New York, 390 U.S. 629 (1968).
  8. Reno v. American Civil Liberties Union, 521 U.S. 844 (1997).
  9. Pub. L. No. 105-277 (1998).
  10. American Civil Liberties Union v. Gonzales, 478 F. Supp. 2d 775 (E.D. Pa. 2007), aff’d sub nom. American Civil Liberties Union v. Mukasey, 534 F.3d 181, 198 (3d Cir. 2008), cert. denied, __ U.S. __, 129 S.Ct. 1032 (Jan. 21, 2009).
  11. In the Matter of Complaints Against Various Broadcast Licensees Regarding Their Airing of the “Golden Globe Awards” Program, File No. EB-03-IH-0110, at 4 (Mar. 18, 2004).
  12. Federal Communic'ns Comm'n v. Pacifica Found., 438 U.S. 726, 750 (1978).
  13. Fox Television Stations, Inc. v. Federal Communic'ns Comm'n, 489 F.3d 444, 447 (2d Cir. 2007), rev'd and remanded, 556 U.S. 502 (2009), on remand, 613 F.3d 317 (2d Cir. 2010), cert. granted, __ U.S. __, 131 S.Ct. 3065 (2011).
  14. CBS Corp. v. Federal Communic'ns Comm'n, 535 F.3d 167 (3d Cir. 2008).

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