Indecency in the 21st Century

[To:]The United States Congress
[Re:]Indecency Legislation and New Media

Abstract:

Congress and the FCC have recently increased pressure on broadcasters to eliminate indecency from their broadcasts. The FCC, created in 1934 to regulate the licensing of broadcast stations, has been allowed by the Court several doctrines allowing it to regulate broadcast. These doctrines are only marginally valuable for broadcast, and do not apply to new mediums such as cable and satellite. The move of all mediums to packet-switched technology will make regulations based on the mode of transmission irrelevant.

The year 2003 saw the winds of change begin to stir on the somewhat lenient stance the Federal Communication Commission (FCC) had taken on broadcast indecency. Then, if one instant, the gentle stirring became a hurricane. This February, during the Super Bowl halftime show, Janet Jackson's performance was that final straw that set the machinery of government in motion. Since then the FCC and Congress have been a whirlwind of motion, with the FCC handing out unprecedented fines and Congress working to pass a law greatly increasing the monetary value of fines that may be given. This is a time of technological revolution. The rules of the media game have changed. Broadcast television has been eclipsed by the meteoric rise of cable and satellite. The Internet has burst onto the scene, offering a before unfathomable wealth of information. Integration has begun to merge the lines between television, radio, cable, satellite, and the Internet. In the media world today the lines between mediums are blurrier than they have ever been, and that is why right now is the time that a clear legislative course must be established. Though governmental regulation of broadcast has been upheld by the Court, the doctrines permitting it are shaky and limited. The scope of scarcity and the new doctrines created in Pacifica are very limited in their applicability and cannot be applied to new media such as cable, satellite, and the Internet.

The Beginnings of Broadcast Regulation

In 1927 the Federal Radio Commission was created to regulate the increasingly crowded radio spectrum. Lacking regulation, the radio spectrum had become chaotic and prone to interference. In 1934 this agency became the Federal Communications Commission, and was put in charge of ``regulating interstate and international communications by radio, television, wire, satellite and cable'' (About the FCC). The FCC issued licenses, regulated spectrum, and generally just aimed to keep the chaos from making radio unusable. The recipients of these licenses were then given certain requirements about what they could and could not broadcast. These regulations were put into place with the justification that the broadcast spectrum is a public good and therefore the FCC must regulate it with the interests of the listening public in mind, not those of the broadcasters. Licenses were granted to certain broadcasters in certain markets depending on market conditions and the type of programming the broadcaster wanted to offer. This act of making licenses contingent on the type of programming offered was contested as a content-based restriction on speech, and was brought before the Supreme Court in 1943 in the case National Broadcasting Co. vs. United States. The Court held that the FCC did have the authority to make such content-based restrictions because of the scarcity inherent in the radio spectrum. The Court has long granted differing levels of First Amendment protection to various mediums, with print held in the highest protection while other mediums are given differing lower standards. In Pacifica the Court said that

It is broadcasting that has received the most limited First Amendment protection. Thus, although other speakers cannot be licensed except under laws that carefully define and narrow official discretion, a broadcaster may be deprived of his license and his forum if the Commission decides that such an action would serve "the public interest, convenience, and necessity."

For a time scarcity was the primary justification for this regulation, but in the 1970's that changed.

The New Doctrines of Pacifica

In 1978 another case came before the Supreme Court that challenged the FCC's regulatory power. This case, FCC vs. Pacifica, was brought by a radio station that had been fined for airing a recording by comedian George Carlin in which he performed a monologue titled ``Filthy Words.'' The FCC fined the station for airing the broadcast, which occurred at two in the afternoon. In finding in favor of the FCC, the Court produced as its justification several doctrines that were relatively novel. It cited an FCC report claiming that

Broadcasting requires special treatment because of four important considerations: (1) children 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, see Rowan v. Post Office Dept., 397 U.S. 728 (1970); (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.

While scarcity had been validated previously, the other three considerations were new to this case.

A Man's Home is His Castle

The Court first addressed the idea that broadcast is an intruder into the privacy that individuals must be able to maintain inside their homes. It cited Rowan vs. Post Office Dept., a case that concerned the legality of rules allowing consumers to opt-out of receiving unsolicited indecent commercial mail. In Pacifica the Court stated that ``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.'' What the Court ignored, however, was the differences between the situation of broadcast and that of the facts found in Rowan. In that case the Court had ruled that

In this case the mailer's right to communicate is circumscribed only by an affirmative act of the addressee giving notice that he wishes no further mailings from that mailer ... To hold less would tend to license a form of trespass and would make hardly more sense than to say that a radio or television viewer may not twist the dial to cut off an offensive or boring communication and thus bar its entering his home.

Yet the regulation on debate in Pacifica was in no way an affirmative action on the part of the consumer. It was instead a system-wide prevention, indiscriminately blocking access for all individuals regardless of their preferences. Vanderbilt University Associate Professor of Law Christopher Yoo, in a lengthy article published by the Georgetown Law Journal, states that

Although the possibility that some people may find particular speech offensive may justify upholding measures that enhance individuals' ability to screen out potentially offensive material on a targetted basis, the potential for offensiveness does not justify the total suppression of the potentially offensive speech (295).

Though the Court presents their position to derive from that of Rowan, really it is a new creation of their own concoction.

Unique Accessibility to Children

Secondly the Court addressed the idea that broadcasting was unique among mediums in its availability to children, often without the supervision of their parents. The Pacifica decision states that

Second, broadcasting is uniquely accessible to children, even those too young to read. Although Cohen's written message might have been incomprehensible to a first grader, Pacifica's broadcast could have enlarged a child's vocabulary in an instant ... The ease with which children may obtain access to broadcast material, coupled with the concerns [to support parents' claim to authority in their own household] recognized in Ginsberg, amply justify special treatment of indecent broadcasting.

The Court wishes to say that since broadcasts can be picked up anywhere, a child could listen in on a radio hidden in a bedroom or backpack without the parent's knowledge or consent. Though it makes the limited case of the child too young to read but old enough to operate a radio, the Court fails to distinguish any other way that broadcast is more accessible than other mediums such as books or magazines. Also, in regulating this content to the level permissible for a young child, the Court contradicts its earlier ruling in Butler v. Michigan, where it held that the government could not ``reduce the adult population to reading only what is fit for children.'' Though the Court addresses this fact, the alternative access options it suggests for adults are incomparable. The majority opinion in Pacifica footnoted that ``Adults who feel the need may purchase tapes and records or go to theaters and nightclubs to hear these words.'' Justice Powell's concurring opinion goes even farther, suggesting that ``The Commission's holding does not prevent willing adults ... from reading the transcript reprinted as an appendix to the Court's opinion.'' Yoo again criticizes the ruling, arguing that ``the alternatives offered by the Court are far from comparable in terms of affordability or ease of access'' (296-297). The Court also offers the possibility that the broadcast might be allowable if made at a time when children are not expected to be in the audience, but it declines to say definitively whether this would be the case.

Unconsenting Adults

The third argument proffered by the Commission and addressed by the Court is that unconsenting adults may tune into the broadcast and may not have adequate warning before they are offended. Though Pacifica had played a warning message before commencing Carlin's broadcast, a listener tuning in to the middle of the program would not hear this, and would be vulnerable to the profanity it contained. In the words of the Pacifica Court,

Because the broadcast audience is constantly tuning in and out, prior warnings cannot completely protect the listener or viewer from unexpected program content. To say that one may avoid further offense by turning off the radio when he hears indecent language is like saying that the remedy for an assault is to run away after the first blow.

This opinion differed greatly from those given by the Court previously. In contexts outside of broadcast the Court had held that it was the responsibility of the onlooker to avert their gaze when faced with unforeseen indecency¹.

Also, improvements in technology have rendered this argument less valid. Modern televisions are required to ship with a V-Chip, circuitry inside the television which allows it to decode ratings sent alongside the programming. These ratings alert the viewer to the nature of the programming, and the V-Chip contains the ability for the parent to restrict access to all content that has a given rating, requiring some sort of password to allow access. Thus the technology today exists to largely isolate from broadcast indecency those who wish to be so cut off.

Despite their problems, as technological advancements have lessened the value of scarcity in modern broadcast, the doctrines presented in Pacifica have become more heavily relied on by the Court in its justification of broadcast regulation.

The Rise of Cable and Satellite

With the introduction of cable, broadcast slowly started to lose its prominence. This wasn't what it was meant to do. Initially cable was simply a means to get the broadcast channels to homes that for reasons of terrain were unable to receive them. The first cable companies consisted of a central antenna which through size or location was able to pick up the broadcasts. The channels were then sent over cables to homes which paid to be hooked up to the system. Over time cable evolved, adding channels from farther away, and then channels that weren't broadcast anywhere.

Digital Broadcast Satellite (DBS) developed much later, as technology improved to the point that hundreds of channels could be beamed down to homes and received with a small, easily mounted dish. Though not as big as cable, the two major players in the DBS field - DirecTV and Dish Network - are both major parts of the modern television infrastructure. Even more recent than DBS is the development of satellite radio. Like DBS, satellite radio is beamed down from low Earth orbit, to special receivers in vehicles and homes.

Cable and satellite share an important distinction from traditional broadcast. Where traditional broadcast was freely available to all who owned relatively simple and inexpensive receiving equipment, cable and satellite require not only special hardware but also that the user pay for a subscription to the service. Though this distinction may appear academic at first glance, it is actually important in separating these services from the Pacifica doctrines used to allow broadcast regulation.

Two of the three new doctrines offered in Pacifica raise the issue of privacy in the home. These doctrines have as their foundation the notion that broadcast is everywhere, and that all one has to do to receive it is turn on an easily obtained piece of technology. With subscription services, however, this is no longer the case. With cable or satellite the user is required to pay to bring the service into the home. Thus it can no longer be classified as an intruder, but instead must be given strict scrutiny as an invited guest.

The World As a Packet

Technology stands poised to rip apart the technological distinctions relied on by regulatory doctrines such as scarcity and those offered in Pacifica. In the modern communications world, everything has the ability to be transmitted as a packet. Buzzwords of the day include Internet radio, IP telephony or voice-over-IP, picture messaging, video conferencing, and the list goes on. Though these technologies may seem to be different mediums, the fundamental transport mechanism all use is exactly the same. All are converted into digital bits, encoded into packets of information, and transmitted via the same Internet backbone. As Yoo notes,

Perhaps the most important insight ... is that packet-switched networks treat all different forms of communication and all means of transmission as essentially fungible. The technology follows the same process of breaking digital information down into individual packets regardless of whether it is conveying a television program, a telephone conversation, or an e-mail message (283).

Over the past few years cable companies has started to offer high-speed Internet connections and telephone services via their cable networks. Telephone companies have begun to offer similar Internet options over their transitional twisted copper pairs. Satellite services have begun to offer full Internet service via their satellites, while other companies have sprung up allowing telephone service over whatever sort of high-speed Internet connection an individual might have. The mode of transmission is no longer intrinsically tied to the medium of communication and regulatory schemes that are defined in such a way no longer have any bearing. Television can be regulated when it is sent via the broadcast spectrum, but those regulations are weakened when it is sent via cable. How much moreso is this the case when that video image is sent via a fiber-optic cable that is also bringing into the house telephone calls, the connection for browsing the Internet, music, and other mediums that we don't even yet have? At this point the distinction between television and video downloaded off the Internet is only technical. ``Radio'' becomes just the same technically as a phone call between two people, only delivered to a different audience and perhaps played via a different household device. When mediums become this blurry, there is no clear distinction that can allow regulatory differentiation. Either the First Amendment applies to them all, or it applies to none of them. There is no middle ground.

A Call for Action

In light of these coming changes, Congress must both act, and let alone. Current actions to expand FCC content regulation to cable and satellite must be stopped. These subscriber mediums must retain their First Amendment rights if they are to develop into their full creative potential. As the Internet and other packet-switched technologies evolve and merge, they must be allowed to prosper without the tinkering hand of governmental intervention. The Court has allowed no doctrines for the regulation of indecency on the Internet. Existing doctrines will not function and will not hold weight in the very different market of this new medium. Congress must resist the urge to attempt to grant regulatory power where none is permissible. The Internet, cable, and satellite, must all be given the strict First Amendment scrutiny afforded to print.

Works Cited

``About the FCC.'' Federal Communications Commission. 26 Apr. 2004. <http://www.fcc.gov/aboutus.html>

Butler v. Michigan, 352 U.S. 380 (1957).

Cohen v. California, 403 U.S. 15 (1971).

Federal Communications Commission v. Pacifica Foundation, 438 U.S. 726 (1978).

National Broadcasting Co. v. United States, 319 U.S. 190 (1943).

Rowan v. Post Office Dept., 397 U.S. 728 (1970).

Yoo, Christopher. ``The rise and demise of the technology-specific approach to the first amendment.'' Georgetown Law Journal 91.2 (2003): 245-356.

Footnotes

... indecency ¹: For instance, Cohen v. California, ``Those in the Los Angeles courthouse could effectively avoid further bombardment of their sensibilities simply by averting their eyes.''