Indecency revisited- Important takeaways
Not protected by the First Amendment, so it is illegal to broadcast obscene content anytime, anywhere, including on subscription services like cable or satellite
For material to be considered obscene it has to pass the three prong test
o an average person, applying contemporary community standards, must find that the material, as a whole, appeals to the prurient interest (i.e., material having a tendency to excite lustful thoughts);
o the material must depict or describe, in a patently offensive way, sexual conduct specifically defined by applicable law; and
o the material, taken as a whole, must lack serious literary, artistic, political, or scientific value.- As stated by the Supreme Court
Protected by First Amendment
Can be broadcast during the “safe harbor” time- 10pm to 6am (local time)
Applicable only to broadcast television
The FCC looks at three primary factors when analyzing broadcast material:
o whether the description or depiction is explicit or graphic;
o whether the material dwells on or repeats at length descriptions or depictions of sexual or excretory organs; and
o whether the material appears to pander or is used to titillate or shock. No single factor is determinative.
Important cases in indecency
FCC v Pacifica (1978)
Is governmental regulation of broadcast television regarding the broadcast of indecent material a violation of the First Amendment?
The court ruled that it was not a violation of the First Amendment and concluded that FCC’s authority to regulate broadcasting of indecent materials was the accessibility of broadcasting to children, which is an important governmental interest.
United States v Playboy Inc. (2000)
Section 505 of the telecommunications act of 1996
Section 505 required cable television operators providing channels primarily dedicated to sexually-oriented programming either to fully scramble or block those channels or limit their transmission to the period between 10 p.m. and 6 a.m.
Appelle – Playboy Inc. challenged the statute as unnecessarily restrictive content based legislation violative of the First Amendment.
In reviewing the constitutionality of Section 505, the Supreme Court determined that the statute was content-based and therefore, could only stand if it satisfied the legal standard known as "strict scrutiny." Under strict scrutiny, a statute must be narrowly tailored to promote a compelling government interest, and if a less restrictive alternative would serve the government's purpose, the legislature must use that alternative.
The Supreme Court held that Section 504 of the 1996 Act, which requires a cable operator to block or scramble cable programming upon the request of individual subscribers, was a less restrictive alternative that would equally serve the government's purpose.
Important question to consider
Is it justified for the indecency rules to still remain the same, restricting only broadcast television? Why? Will cable regulation violate the First Amendment?
Yes, the rule is still justified because of the fact that
(a) Users have the option of bringing cable into their houses, it’s a subscription service
(b) Parental control/ locks of cable programming would enable to protect children from indecent content
(c) Imposing restrictions when option (b) is available, which is a less restrictive approach, would violate the First Amendment.
(d) Even if blocking broadcast television would be possible (V-chips) that would not be an option, because of the fact that broadcast channels transmit important warnings (weather-tornado, winter storm etc). Requiring users to block broadcast programming would be a bad thing to do. So it is important to regulate broadcast programming and not cable when it comes to indecent material.