Until Janet Jackson’s breast appeared for .7 seconds (an FCC friend tells me that FCC staffers watched it dozens of times to count the number of frames containing an image of her breast), FCC penalties for broadcast indecency were rare and relatively small. Only three fines since 1999 were greater than $50,000. The fifth-highest fine since 1999, for instance, was $27,500 levied against a station hosting the performers of “Puppetry of the Penis” because, in the words of the FCC, “one of the performers exposed his penis while preparing to demonstrate `genital origami.'”
Indeed, in the Janet Jackson hearings Senators’ and Representatives’ main complaints were that the FCC found so few things actionably indecent; that the maximum monetary penalty under the statute was only $27,500 for each violation; and that the FCC had never revoked a license because of broadcast indecency.
Now that is changing. The House has passed legislation that increases the maximum monetary penalty to $500,000 for each violation and that provides for revoking the license of broadcasters who are penalized three times. Other legislation would (to the delight of George Carlin) define the statutory term “profane” to include any form of eight objectionable words. The FCC, meanwhile, has reversed an earlier ruling and announced that Bono’s statement upon receiving a Golden Globe award that “this is really, really fucking brilliant” was subject to penalty because it was indecent and profane. This determination greatly expands the scope of “indecent” – the FCC had limited indecency to language that “describes or depicts sexual or excretory organs or activities,” which Bono’s usage did not do. And it gives an entirely new meaning to “profane,” which the FCC had limited to blasphemy (and did not use as the basis for penalties).
The bottom line for broadcasters is that they are much more likely to be penalized, and that the penalties will probably be more severe – and as a result a judicial challenge is more likely.
In recent years broadcasters have refrained from bringing judicial challenges to the regulation of broadcast indecency precisely because the fines were small, and rare, enough that broadcasters decided it was not worth the costs of antagonizing the FCC and Congress. Now, with heavy fines (and maybe even license revocation) on the line, broadcasters are more likely to do so. Indeed, that process began yesterday, when both NBC and a coalition of media groups filed petitions asking the FCC to reverse its decision. It looks like those groups are girding for a judicial challenge to the indecency regulations.
This is significant, because the Supreme Court probably would – and in my view should – find these indecency regulations unconstitutional. With respect to newspapers and magazines, telephones, and cable television, the Supreme Court has held that the government may not reduce the adult population to viewing only what is fit for children. As the Supreme Court noted in the 2000 Playboy case on cable indecency, a core principle of the First Amendment is that “The citizen is entitled to seek out or reject certain ideas or influences without Government influence or control.”
Broadcast has been the glaring exception in the Supreme Court’s jurisprudence, but its special status is no longer tenable. The Court ruled, 5-4, in the 1978 Pacifica case that broadcast indecency could be penalized because broadcasting is uniquely pervasive and uniquely accessible to children. The problem is that broadcasting no longer has that distinction Broadcast’s pervasiveness and accessibility are not significantly different from, for example, cable television. Indeed, for the 88 percent of television households who use cable or satellite, a broadcaster is just another cable station. It further bears noting that the V-Chip embedded in television sets allows parents to choose what sorts of material they want to block (if they so desire), giving them control over what their children see and further undermining the case for state regulation.
The bottom line is that the government’s new regulatory aggressiveness is likely to produce judicial review of such regulation – which review will likely invalidate the regulation on First Amendment grounds.
Might some FCC Commissioners and Members of Congress have supported this new regulation regime because they secretly wanted to bring about the demise of broadcast indecency regulation? I don’t know, but I believe that their actions – prompted by the fleeting image of Janet Jackson’s breast – will probably hasten that demise.
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