The Lincoln Plawg - the blog with footnotes

Politics and law from a British perspective (hence Politics LAW BloG): ''People who like this sort of thing...'' as the Great Man said

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Sunday, January 18, 2004

The FCC and Imus - a little further enlightenment

My piece on January 16 concluded that shock-jock Don Imus and other broadcasters whose outrage was of a non-sexual and non-excretory kind had full First Amendment protection against FCC action.

I now find an interesting 1996 article in the Villanova Sports and Entertainment Law Journal under the head The FCC, Indecency, and Anti-Abortion Political Advertising.

The starting point of the piece is the FCC's need to come up with a ruling whether graphic anti-abortion TV spots should be ruled indecent and thus fall to be specially regulated (links to materials in the January 16 piece):
in its 1994 "November Ruling," the FCC decided that political ads with graphic abortion imagery were not indecent, but could nevertheless be channeled to times of the day when children were less likely to be in the audience if broadcasters, in the good faith exercise of their discretion, believed that the commercials would be harmful to children.

The ruling was challenged, and struck down in 1996 by the DC Circuit Court in Becker v FCC (the Villanova piece cited in the opinion!). The case made against the ruling did not in any way impugn the FCC finding that the adverts complained of were not indecent.

The Villanova piece does look at the indecency issue [1]. In order to get within the FCC's own definition of indecent [2], the aborted fetuses would have to constitute excrement - and an initial ruling decided that they were not (p101). A US District Court decided the other way in October 1992 (p103), and the FCC's definitive ruling came in November 1994:
Material may be shocking or outrageous, but it is not indecent within our definition unless it depicts or describes 'sexual or excretory activity or organs.' However disturbing, aborted fetuses or fetal tissue, alone, cannot be considered 'excretory by-products' within the meaning of the indecency definition

The piece suggests that the broadcasters' dilemma was hypothetical (p104):
The reality in the indecency context is that despite its stepped-up enforcement efforts after 1987, the FCC has not imposed forfeitures on news- related indecency undertaken in a serious vein. Indeed, the Commission's primary target for indecency enforcement appears recently to have been Howard Stern-type "shock radio" material. Moreover, although the agency has imposed high fines on licensees who have aired indecent material by Howard Stern, it has nevertheless resisted the opportunity to cause license renewal problems even for those stations.

In any case, stations could submit suspect adverts to the FCC for an advance ruling on the indecency point.

The piece points out (p106) that the FCC's indecency ruling was not the only one available: going back to the Pacifica case,
The Commission itself has radically shifted and expanded its application of the prohibition on indecency since Pacifica without significantly changing the words of the definition. Although the broad definition of indecency the Commission has been enforcing since 1987 harkens back to language used by the FCC in Pacifica, that generic definition was in fact interpreted during the decade following the Supreme Court's decision in FCC v. Pacifica as only covering repetitive uses of the "seven dirty words" featured in the now-famous George Carlin monologue at issue in the case. It is only since 1987 that the indecency standard has been transformed into a disciplinary regime potentially enveloping all broadcast references to sexuality that the Commission finds patently offensive...Moreover, the FCC has attributed its expansion of the indecency interpretation to a desire for intellectual consistency - a decision to eliminate the arbitrary exclusion of whole categories of offensive speech by the post-Pacifica limitation of enforcement to the seven dirty words. Yet the Commission's decision to stop its expansion of indecency at the sexual boundary is not dictated by that rationale.

On the other hand (p110),
The history of the FCC's treatment of indecency evidences the separation of sexuality from other elements of potential offensiveness. The Commission's finding in the November Ruling is wholly consistent with the pattern of the FCC's indecency enforcement since its stepped-up enforcement policy commenced in 1987...the one clear theme is that it covers the spectrum from the explicitly sexual to the more coded forms of smutty double entendre. Historically, the FCC has not found indecency outside the realm of pandering, vulgar, or titillating depictions - narrowly interpreted - of sexual or excretory activities or organs.

Thus (p111),
On a number of occasions prior to the adoption of the generic indecency definition, the FCC has been confronted with - and rejected - claims that highly inflammatory and offensive language should be taken off the air as indecent. Even after the Supreme Court's decision in Pacifica, the Commission declined an invitation to extend section 1464 to explicitly racist and inflammatory statements during J. B. Stoner's gubernatorial bid in Georgia in the 1970s, and permitted a station's license to be renewed despite anti-Semitic slurs in its "public affairs" programming in the 1960s. Even when faced with claims that offensive speech on the air should be regulated under section 1464 because it might present the threat of imminent violence, the Commission has enforced a stringently narrow interpretation of the degree of danger of violence that should trigger governmental involvement. The Commission has never construed section 1464 as covering offensive speech of a non-sexual nature.

There is then a section (p114ff) on First Amendment issues, which is very much a matter of Sherlock Holmes's dog: thanks to the FCC's ruling, there are no such issues, more or less (the RAV case is cited, though not needed).

On the separate question of statutory interpretation (p116), the piece says that the ruling, though badly argued by the FCC, was supportable. It cites a ruling on the use of our old friend, nigger:
the FCC's Broadcast Bureau in Julian Bond [3], in the context of rejecting the NAACP's argument that the use of the word "nigger" in a political advertisement should be deemed indecent, stated that "even if the Commission were to find the word 'nigger' to be 'obscene' or 'indecent,' in light of Section 315 we may not prevent a candidate from utilizing that word during his 'use' of a licensee's broadcast facilities."

[Interestingly, the note (#99) to that item refers to an earlier case (Ken Bauder) where the FCC were asked to rule whether the Smith Act prevented the sale of spots to Communist Party candidates - the FCC said (broadly) no. Apparently, the FCC thought the law on election broadcasts trumped the Smith Act where they clashed [4]. ]

  1. Under the sub-head The Scope of Indecency - p99ff (the page numbers, I surmise, are the asterisked numbers in bold).

  2. And I'm assuming it's entitled to define such terms under legislation somewhere.

  3. Another old friend!

    The Villanova practice of not italicising case names is odious!

  4. I can't imagine that Communists and broadcasting in the (misleadingly so-called) 'McCarthy Era' isn't a well-ploughed field.


The Villanova Sports and Entertainment Law Journal is well worth a look. The good news is, the subject-matter is attractive to the non-specialist (baseball, table-dancing: who's not loving that?); the bad news is, the run comes to a juddering halt in 2001 with Volume VIII Issue 1. Pity.

CORRECTION (March 7 2004)

The Villanova journal is dead, apparently; I have substituted Wayback Machine links above. The FCC article and index page are there; others are not.

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