Hello

1

• Indecency!

2
Important Term

• Indecency material that is outrageous,
  especially in a vulgar or sexual way, however
  does garner some 1A protection. This area is of
  special interest to broadcasters b/c while the
  material may have 1st Amendment protection, it
  may still be restricted from the airwaves.

3
Youre probably thinking
Professor Simon, how can speech that not obscene
and protected by the 1A, still be regulated?
Isnt that tantamount to content-based regulation
and thus violative of the 1A?
Simon says Ordinarily, youd be right,
grasshopper. But, in broadcasting, remember the
scarcity rationale!
4
Indecency Standard
OK, just give me something I can work with
something I can use!
5
Indecency Standard?

• Federal criminal code (1927) whoeverutters any
  obscene, indecent, orprofane language by means
  of radiocommunication shall be fined under this
  title or imprisoned not more than two years, or
  both (18 U.S.C. 1464)
• FCC (1975) Language or material that, in
  context, depicts or describes, in terms patently
  offensive, as measured by contemporary community
  standards for the broadcast medium, sexual or
  excretory organs or activities
• Significantly broader definition than that for
  obscenity, which is really very narrow. No
  prurient interest requirement and no built-in
  protection for material that contains political
  or artistic value.

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Major indecency case

• FCC v. Pacifica Foundation (1978)first case on
  indecencyGeorgeCarlins Filthy Words
  monologue
• 5-4 decision, the U.S.S.C. sided with
• the FCC for 2 reasons
• Broadcasting is uniquely pervasive
• Program was uniquely accessible to children
• Similar to a time/place/manner restriction
• Safe harbors10 p.m. to 6 a.m.
• No safe harbors on pay cable, satellite TV/radio

7
Youre a broadcaster
Professor Simon, so as long as I stay away from
the seven dirty words and/or relegate them to
the hours of 10pm to 6am, Ill OK, right?
Simon says Well grasshopper, the problem for
you may be the FCCs enforcement of its own
rules!
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• Indecent
• Howard Stern interviewing a guest at length about
  his Sphincterine swamp ass invention (4/9/03,
  725-745 a.m.)
• Two morning-show personalities discussing a
  thirds use of a pee-pee pump to enlargen his
  member (9/17/02, 915-945 a.m.)

• Not indecent
• CNNs inadvertent airing of a technicians F-bomb
  during the 2004 Democratic National Convention
• Shit, fuck, bastard and hell in an
  unedited showing of Saving Private Ryan on
  Memorial Day (Sen. McCain exhorts the value of
  the unedited version and warns that it may be
  inappropriate for kids)

9
The F-word Bono andthe 2003 Golden Globes

• Upon winning an award, Bono exclaimedon live NBC
  TV, This is really, reallyfucking brilliant
• Initially FCC was OK with it
• After Janets SuperBowl show, it reversed itself
• Why? The word wasnt itself indecent by the FCCs
  own definition at the time
• But now We believe that, given the core
  meaning of the F-Word, any use of that word or
  a variation, in any context, inherently has a
  sexual connotation, and therefore falls within
  the first prong of our indecency definition
  (emphasis added)
• FCCs most recent March 2006 indecency fines any
  words that depict or describe sexual or excretory
  functions, no matter what the context, will be
  considered indecent

10
Janets wardrobe malfunction, Super Bowl 2004

• Heavy political pressure to removeindecency from
  the airwaves
• FCC fine for Janet incident550,000 (CBS
  fighting the fine)
• Breast exposure was brief (19/32 ofa second,
  says CBS)
• But the FCC found that CBS knewthe show would be
  titillating andmarketed it as shocking to gain
  viewers
• CBS/Viacom paid 3.5 mill for various indecency
  incidents (Howard Stern and others) in Nov. 2004
• Clear Channel also recently paid 1.7 mill in
  fines

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Fines are on the rise!

• Millions of dollars in fines (or
• forfeitures have been levied
• Can having a chilling effect on the 1A!
• Broadcasters have changed to safer programs
• Remember no exception for political or artistic
  material!

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Counter-argument

• Good!
• Get that trash off the airwaves
• The airwaves are public property and you Mr. or
  Ms. Broadcaster are merely a licensee!

13
I give, I give
HhhhhProfessor Simon, how can I air on the
side of caution and keep me or my station legal?
It seems really tough
Simon says Well grasshopper, lets review some
questions you can ask yourself to best determine
if something is indecent
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Is it indecent?

• (1) Does the material describe or depict sexual
  or excretory activities?
• (2) Is the material patently offensiveas
  measured by modern community standards for
  broadcast?
• (3) Did (or might) the material air during a time
  when children are likely to be in the audience,
  as opposed to the FCCs safe harbor hours?