Protection of Indecent Speech (Re-Post)

With advancements in technology new ways in communicating have arisen through the pipeline which gives people new avenues in which to participate in their First Amendment rights. As these new technologies arise the Supreme Court continues to struggle in maintaining and upholding the 1942 Chaplinsky v. N.H. court ruling which stated that “worthless” speech would not be protected under Freedom of Speech. Such worthless speech includes fighting words, profane, lewd, or obscene speech. For this weeks blog we are looking at a new category of speech that has been added to the list of worthless speech and that is indecent speech. This new category is only being applied to the mediums of television and radio but that doesn’t mean it’s constitutional. While I am against the whole notion of worthless verses worthwhile speech I will specifically argue this particular form of speech should be protected. We cannot let the advancement in technology be used as an excuse by the Supreme Court to further infringe on our First Amendment rights.

Before going into the reasoning of the Supreme Court in the case of Fox Television Stations v The FCC let me first provide background. The legal dispute began after the 2002 Billboard Music Awards. The live show included two incidents of profanity. The first incident took place when Cher while accepting an award used an obscenity and the second occurred when Nichole Richie presented an award. The next year at the 2003 Golden Globe Awards U2’s Bono used the f-word during his acceptance speech. Again in 2004 the Super Bowl halftime show starring Janet Jackson and Justin Timberlake there was a wardrobe malfunction that was responsible for exposing Janet’s breast. With all of these incidents the FCC has been considering expanding the definition of indecent speech which would further infringe on broadcasters First Amendment rights.

In order to better understand the context in regards to the courts approach to the FCC v. Fox Television Station, we need to look at the 1978 case FCC v. Pacifica when the ruled in favor of the FCC stating that indecent language may be banned from broadcast between the hours of 6a.m. to 10p.m. Before I provide the reasoning of this verdict, I need to provide the full background story. Pacific Foundation radio ran an afternoon broadcast of a satiric monologue entitled “Filthy Words” which listed and repeated words that are not allowed to be spoken on public broadcast. There was a warning given to listeners as to the nature of the speech before the monologue began but a father sitting the car with his young son missed the warning. As a result, the father filed a complaint with the Federal Communications Commission (FCC). After reviewing the facts “The FCC characterized the language of the monologue as “patently offensive,” though not necessarily obscene” and decided that such language should be regulated during the hours that children are most likely listening. They found the power to regulate such broadcasting under the 18 U.S.C 1464 which forbids any use of "any obscene, indecent, or profane language by means of radio communications." The reasoning for this verdict was:

1) “broadcast media have established a uniquely pervasive presence in the lives of all Americans. Patently offensive, indecent material presented over the airwaves confronts the citizen, not only in public, but also in the privacy of the home, where the individual's right to be left alone plainly outweighs the First Amendment rights of an intruder.”

2) “broadcasting is uniquely accessible to children, even those too young to read.”

3) “narrowness of holding: time of day, context of show, differences between radio, television, and perhaps closed-circuit transmissions”

It must be noted here that the “Filthy Words” monologue was considered indecent because the words were repeated multiple times throughout the broadcast. This left words stated only once under questioning as to whether they were considered indecent. However, we will see later that the FCC expanded the definition of indecent words to include “patently offensive” words only stated once.

Dissenters from this ruling included Justice William Brennan who opposed the creation of the category of banned indecent speech for broadcast under the argument that the audience chooses to receive such broadcasts and is not considered a captive audience. I tend to agree with this opinion because even though the father missed the warning he still has the power to change the station.

Before we go any further, there needs to be a single philosophical approach with which to best analyze this issue as well as the level of scrutiny to place on laws against suppression of speech. In addition to this the definition and idea of censorship needs to be discussed in order to determine whether the FCC v. Pacifica case can be ruled unconstitutional.

Of all the philosophical approaches used in freedom of speech cases in the past, I find myself continually using Thomas Emerson’s approach which is that all “expression must be freely allowed and encouraged, and has earned an absolute right of protection. However, speech that includes ‘action’ has no protection.” The doctrinal level of scrutiny in this instance should be strict scrutiny which means that the FCC must prove it has a compelling reason to regulate or punish the speech and the restriction is not overly broad or vague & advances government interest. This level of scrutiny coincides with the “true threat” test which was defined in the Supreme Court in the 2003 case Virginia v. Black. A “true threat” is defined as, “[t]hose statements where the speaker means to communicate a serious expression of intent to commit an act of unlawful violence to a particular individual or group of individuals.”

If we were to put this test against the FCC v. Pacifica case, the FCC would fail. Under strict scrutiny there is no compelling reason or evidence that the FCC can provide showing that listening to indecent language on the radio causes a “true threat” towards children. Even though the father missed the warning given before the broadcast he still had the power to instantly switch the radio station. It should not be the job of the FCC and other government agencies to parent our children. All the father had to do was change the station and talk to his child. It must be stated that it was only by applying intermediate scrutiny (a substantial government interest in protecting children) that Pacifica was upheld.

Now, in regards to censorship, the legal definition is the suppression of ideas or images by the government or others with authority. In 1934 there was a Communications Act that was passed regarding radio broadcasting. Under section 326 within Title III “prevents the commission from exercising censorship over broadcast stations.” However provisions in the U.S. code link to the Communications Act under title 18, 1464 of the U.S. code "bars individuals from uttering obscene or indecent language over a broadcast station.” Now, these two provisions can be seen as being in direct contradiction to each other. However the opinion of the court in the FCC v. Pacifica case states that

“The prohibition against censorship unequivocally denies the Commission any power to edit proposed broadcasts in advance and to excise material considered inappropriate for the airwaves. The prohibition, however, has never been construed to deny the Commission the power to review the content of completed broadcasts in the performance of its regulatory duties.”

So in other words, according to the court the FCC is not in violation of censorship because they did not prevent the monologue from airing. I completely disagree with this assessment. Whether you prevent a broadcast from airing or promise to fine and or jail time for that broadcast after-the-fact its still censorship. Censorship and self-censorship is in many ways the same thing. Self-censorship is the decision not to say or write something because it might cause problems for the individual themselves or for others. Self-censorship is still censorship because ideas are still being suppressed which according to the First Amendment is entirely unconstitutional. It also goes against Article 19 of the UDHR which states that “[e]veryone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through ANY media and regardless of frontiers.”

Since this ruling the courts have been back and forth on this decision. In fact, “Not only did the Federal Radio Commission so construe the statute prior to 1934; its successor, the Federal Communications Commission, has consistently interpreted the provision in the same way ever since.” That is until now. On July 13, 2010 a federal appeals struck down the FCC’s policy on indecency stating that “regulations barring the use of “fleeting expletives” on radio and television violated the First Amendment because they were vague and could inhibit free speech.” In a unanimous decision the Court of Appeals for the Second Circuit in New York stated the FCC’s current policy established “a chilling effect that goes far beyond the fleeting expletives at issue here” because it left broadcasters without a reliable guide as to what language the FCC would deem offensive.

This decision came as a result from the FCC issuing a stricter policy regarding what constituted as indecent words. Before the policy had to do with repetition of words that were considered indecent. But, because of ongoing controversy involving celebrities like Bono and Cher uttering the f-word on live television, the FCC decided to expand their definition to indecent words only uttered once. However, because of this expansion and the continuous undecided specific meaning of the word indecent the courts have ruled that the FCC needs to decide on a definitive definition that will allow broadcasters to definitively know what they can and cannot say.

Regardless, the 2009 case FOX v. FCC the 2^nd Circuit court ruled in favor of protecting fleeting expletives and the FCC (expanded) indecency policy was ruled void for its vagueness. In addition to that FCC v. Pacifica ruling was called into question. The reasoning for this ruling was presented as follows:

“[T]he court pointed out that the Commission’s definition of indecent speech would prohibit ‘the uncensored broadcast of many of the great works of literature including Shakespearian plays and contemporary plays which have won critical acclaim, the works of renowned classical and contemporary poets and writers, and passages from the Bible.’ Such a result, the court concluded, amounted to unconstitutional censorship.”

“[F]inding the single utterance of the F-word not indecent because it was a “fleeting and isolated utterance which, within the context of live and spontaneous programming, does not warrant a Commission sanction”

It is well-established that indecent speech is fully protected by the First Amendment.

Reno v. ACLU “Where obscenity is not involved . . . the fact that protected speech may be offensive to some does not justify its suppression.

The reasons for questioning the Pacifica case were as follows:

“The option to block reduces the likelihood, so concerning to the Court in Pacifica,

that traditional First Amendment scrutiny would deprive the Government of all authority to address this sort of problem. The corollary, of course, is that targeted blocking enables the Government to support parental authority without affecting the First Amendment interests of speakers and willing listeners – listeners for whom, if the speech is unpopular or indecent, the privacy of their own homes may be the optimal place of receipt”

This reasoning further supports my argument that advancement in technology cannot be used as a viable reason to further infringe on our First Amendment rights. We need to go back to the principles laid out in the UDHR which states that everyone has the right to freedom of expression and opinion as well as the right to seek such information through ANY form of media without any interference. The advances in technology should not deter us from this fundamental principle.