Protection of Indecent Speech

Freedom of speech is a right awarded to all Americans. It grants people the right to freely express their opinions and ideas without censorship. However like most other freedoms, free speech does not come without certain restrictions. In the 1942 case Chaplinsky v. N.H the court ruled that “worthless” speech would not be protected under Freedom of Speech. Such “worthless” speech includes fighting words, profane, lewd, or obscene speech. Since that ruling there has been constant debate regarding “worthless” speech and whether it is unconstitutional to prevent such speech as it infringes upon a person’s right to freedom of expression. A separate but related debate is the censorship of speech through different mediums. As I see it, all speech should be protected as long as such speech does not cause imminent danger on another human being regardless of the medium in use for such speech.

In the 1978 case FCC v. Pacifica the court 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. “[B]roadcast 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. “[B]roadcasting is uniquely accessible to children, even those too young to read.”
3. “[N]arrowness 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 of this ruling included Justice Brennan who opposed the creation of banned speech 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, conduct that includes ‘action’ has no protection.” While I agree that all forms of expression should be completely protected I would also argue that some forms of actions should be protected as well. I propose that actions that do not incite imminent danger on another human being should be protected under the First Amendment. The doctrinal level of scrutiny in this instance should be strict scrutiny. Meaning that the FCC must prove it has a compelling reason to regulate or punish the speech & restriction 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 an 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 has to do is change the station and talk to his child.

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 Commissions 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 Commissions 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 this 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. This is the FCC failing to pass strict scrutiny.

Regardless, the 2009 case FOX v. FCC the 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. It is my hope that the policy for indecency be ruled unconstitutional for the reason that it inhibits broadcasters First Amendment rights. In addition to that, the Commissions Act prevents the FCC from exercising censorship over broadcast stations. 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.