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Indecency, television and the first amendment.

Article Excerpt
The Federal Communications Commission and the enforcement of its indecency rules have received a great deal of attention lately. Much of it--though by no means all--centers on a recent staff decision declining to impose a penalty on broadcast of one particular expletive during a live broadcast of the Golden Globe Awards last January. That decision currently is under review by the full Commission, and Chairman Powell has stated publicly that he intends for the agency to overrule the Bureau order. According to press reports, the Chairman proposed a rule "that would nearly guarantee an FCC fine if [the profanity is] uttered between 6 a.m. and 10 p.m. on radio and broadcast television."

Much of the adverse reaction to the staff Golden Globes Order centers on its observation that the word "'f**king' may be crude and offensive, but, in the context presented here," may not be actionably indecent when used "as an adjective or expletive to emphasize an exclamation." In a less discussed part of the Order, however, the Bureau also found that "fleeting and isolated remarks of this nature do not warrant Commission action," a proposition for which there is ample precedent. In fact, the initial FCC orders that preceded Supreme Court review in FCC v. Pacifica Foundation stressed that it would be inequitable to hold a licensee responsible for indecent language when "public events likely to produce offensive speech are covered live, and there is no opportunity for journalistic editing." But whether or not the Golden Globes Order is defensible on other grounds, it may be fairly safe to assume given the present climate that the days of the Bureau decision are numbered.

The official responses spawned by the current controversy would seem to ensure this outcome. Both the House of Representatives and the Senate introduced resolutions condemning the Golden Globes Order, and have urged the FCC generally to take a more activist role in indecency enforcement.

Chairman Powell has endorsed the imposition of vastly higher fines, and has called for a 10-fold increase in forfeiture levels in order to create more of a deterrent effect on broadcast programmers. These actions have come after the Commission announced its intention to impose a number of significant fines under existing rules, and the agency has threatened to revoke the licenses of broadcasters who commit "serious violations" of the indecency policy.

Any Change in the FCC's Indecency Policy Requires a Comprehensive Constitutional Review of the Rules. Whatever course the FCC and Congress may take in this area, neither body can avoid the need for thorough constitutional scrutiny of its actions. As Chairman (then Commissioner) Powell has said, "as government pushes the limits of its authority to regulate the content of speech, the more its actions should be constitutionally scrutinized, not less." He previously has stressed that "any responsible government official who has taken an oath to support and defend the Constitution must squarely address this important question."

With respect to regulating broadcast content, Chairman Powell has criticized as a "willful denial of reality" the Commission's failure to re-examine the "demonstrably faulty premises for broadcast regulation," including the claim "that broadcasting is uniquely intrusive as a basis for restricting speech." Of this rationale he has said, "[t]he TV set attached to rabbit ears is no more an intruder into the home than cable, DBS, or...

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