Avoiding slim reasoning and shady results: a proposal for indecency and obscenity regulation in radio and broadcast television.

• Author: Rigney, Jacob T.

1. INTRODUCTION A. The Citadel Case B. The Road Ahead II. THE CONSTITUTION, OBSCENITY, AND INDECENCY A. The Constitution B. Obscenity C. Indecency 1. Federal Communications Commission v. Pacifica Foundation 2. Sable Communications of California, Inc. v. Federal Communications Commission 3. The Commission's Guidance a. Statutory Basis/Judicial History b. Indecency Determinations: Case Comparisons i. Explicitness/Graphic Description versus Indirectness/Implication ii. Dwelling Repetition versus Fleeting Reference iii. Presented in a Pandering or Titillating Manner or for Shock Value c. Enforcement Process d. Conclusion 4. The Separate Statement of Commissioner Susan Ness a. Recommended Procedural Improvements b. Broadcasters Are Part of a National Community 5. The Separate Statement of Commissioner Harold W. Furchtgott-Roth 6. The Dissenting Statement of Commissioner Gloria Tristani III. ANALYSIS A. The Commission and Indecency 1. Procedural Concerns 2. The Subjective Nature of Indecency Regulation a. The First Prong b. The Second Prong c. "For the Broadcast Medium" d. The Three Non-exclusive Factors e. The Citadel Case f. The Sarah Jones Case B. The Commission and Obscenity IV. PROPOSAL V. CONCLUSION I. INTRODUCTION

   1. The Citadel Case

      On June 1, 2001, the Federal Communications Commission ("FCC" or Commission") released a Notice of Apparent Liability ("NAL") written by Enforcement Bureau Chief David Solomon which fined the Citadel Broadcasting Co. and KKMG-FM of Pueblo, Colorado, $7000 for "willfully broadcasting indecent language" (1) in violation of federal law. (2) The indecent material consisted of lyrics from the controversial rapper Marshall Mathers, known as Eminem, from his single, "The Real Slim Shady." (3) The station claimed that the version of the song they aired was a radio-edited version, which they rendered decent through the use of muting devices and sound effects. (4) The FCC ruled, however, that even with editing, the single was indecent, (5) and further that the attempt to edit the song did not even warrant a reduction in the fine. (6)

      Rather than simply pay the fine, Citadel challenged the NAL. (7) This led to a January 8, 2002, opinion, again authored by FCC Enforcement Bureau Chief David Solomon, declaring that the radio-edited version of the song was not indecent and revoking the fine. (8) The Commission reversed its decision despite the introduction of no new facts in the case. (9) The new opinion made mention of the prior NAL only to say that it was rescinded and did nothing to explain why such a reversal was warranted. (10)

      It is within this context of administrative half-truth and constitutional gray area that judges and attorneys have been playing their roles for years. As the Citadel cases prove, what is or is not indecent is hardly clear. But a larger issue looms: If the government is so ill-equipped to answer the required questions, why do we keep letting them decide?

   2. The Road Ahead

      This Note will explore the relevant law regarding the issue of indecency and obscenity, with particular focus on a 2001 Policy Statement released by the FCC. It will continue by examining the major problems with the regulatory scheme as it now exists, and offer an alternative. Finally, this Note argues that leaving the subjective decisions regarding indecency to market forces, leaving parents to determine what should or should not be indecent, and leaving the FCC free to pursue obscenity with greater zeal is the most appropriate course of action for the future.

2. THE CONSTITUTION, OBSCENITY, AND INDECENCY

   1. The Constitution

      The Constitution reads, in relevant part, "Congress shall make no law ... abridging the freedom of speech." (11) The Supreme Court, however, never interpreted the amendment to afford absolute protection to all speech. Incitement, (12) fighting words, (13) and child pornography (14) are all speech-related activities that are not protected by the First Amendment. Defamation jurisprudence balances the First Amendment interest in speech with the government's interest in protecting citizens' reputations against false attack by modifying the protection depending on the public or private nature of the plaintiff and the nature of the defendant. (15) Even at the apex of its power in the defamation context, the First Amendment requires only a showing of actual malice by the plaintiff, which is a step short of the absolute protection one might expect from the wording of the First Amendment. (16) The Constitution also protects some other speech, such as commercial speech, but to a lesser extent. (17)

   2. Obscenity

      Obscenity falls into the category of completely unprotected speech. (18) Indecent speech falls into the category of lesser protected speech. (19) The definitions of and differences between such legal terms of art are not, however, so easily outlined.

      In Roth v. United States, the Supreme Court held explicitly that obscene speech was not protected by the First Amendment. (20) The Court went on to explain, however, that "sex and obscenity are not synonymous." (21) Taking a cue from Webster's Dictionary, the Roth Court suggested that obscenity "deals with sex in a manner appealing to prurient interest." (22) The Court also held that this standard would be based on the average person, rather than the most impressionable person, rejecting the standard previously announced in Regina v. Hicklin. (23) The Roth test for obscenity can be summarized as "whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to the prurient interest." (24)

      The Court, however, encountered a much more difficult task than it imagined in interpreting Roth consistently. In Kingsley International Pictures Corp. v. Regents of the University of the State of New York, the Court invalidated a New York statute that prohibited the showing of a film if it portrayed sexual immorality in a positive light. (25) In Paris Adult Theatre I v. Slaton, however, the Court seemed to take a step in the opposite direction, upholding an injunction prohibiting the display of adult films even if there was no chance that any minor would see it. (26)

      A few years after Kingsley, but prior to Slaton, the plurality opinion in A Book Named "John Cleland's Memoirs of a Woman of Pleasure" v. Attorney General of the Commonwealth of Massachusetts redefined obscenity. There, the Court held that a work was obscene when:

      (a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value. (27) In Miller v. California, however, the Court expressed misgivings about the ability of a state to ever prove that material was "utterly" without redeeming social value. (28) The Court settled on a definition of obscenity similar to, albeit more complicated than, the standard enunciated in Roth, with more clearly defined exceptions to promote First Amendment values. The test, which still controls today, is:

      (a) whether "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. (29) C. Indecency

      Indecency law is administrative in nature and is enabled under 18 U.S.C. [section] 1464. The justifications for indecency law and its intrusion into the area of the First Amendment, however, are set out in FCC v. Pacifica Foundation. (30)

      1. Federal Communications Commission v. Pacifica Foundation

         FCC v. Pacifica Foundation was the first case in which the Supreme Court considered the issue of indecency in the broadcast setting. The case arose from the broadcast of a George Carlin monologue entitled "Filthy Words." (31) The Court explained that indecency is not the same as obscenity in that indecent material does not necessarily appeal to the prurient interest. (32) Indecency, the Court said, need only be in "nonconformance with accepted standards of morality." (33) Additionally, the Court recognized that it had traveled far from its jurisprudence in print media cases, explaining why much stricter regulation of broadcast media was required:

         (1) [C]hildren have access to radios and in many cases are unsupervised by parents; (2) radio receivers are in the home, a place where people's privacy interest is entitled to extra deference; (3) unconsenting adults may tune in a station without any warning that offensive language is being or will be broadcast; and (4) there is a scarcity of spectrum space, the use of which the government must therefore license in the public interest. Of special concern to the Commission as well as parents is the first point regarding the use of radio by children. (34) In dicta, the Court, through Pacifica, also authorized channeling. Channeling, for the Court's purposes in Pacifica, allowed the FCC to penalize stations for airing indecent material when children would be in the audience, but not during other time periods:

         The Commission characterized the language used in the Carlin monologue as "patently offensive," though not necessarily obscene, and expressed the opinion that it should be regulated by principles analogous to those found in the law of nuisance where the law generally speaks to channeling behavior more than actually prohibiting it.... [T]he concept of "indecent" is intimately connected with the exposure of children to language that describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities and...