In a one-sentence rider attached to a last-minute appropriations bill, Sen. Jesse Helms (R-N.C.) slipped a national ban against “indecent” broadcasting into federal law this week, setting off alarms throughout the television and radio industries.
“We’re very seriously considering going to court,” said Walt Wurfel, public-affairs vice president of the National Assn. of Broadcasters.
As the national lobby for commercial radio and television, the association represents more than 6,000 broadcast stations. According to Wurfel, the association will soon issue guidelines to its membership on how to deal with the new indecency ban, which President Reagan signed into law Tuesday.
The new law, which officials of the Federal Communications Commission say they will begin enforcing immediately, requires the commission to draft regulations and begin enforcement of a 24-hour-a-day ban on indecency no later than Jan. 31.
The measure did not define indecency but referred to a section of the U.S. Code that says people who broadcast “obscene, indecent or profane language” can be fined up to $10,000 and imprisoned for two years. The Code does not define those terms either, leaving it to judicial interpretation.
“I think what it does is really tie the hands of television,” said Carol Soble, a First Amendment lawyer with the American Civil Liberties Union in Los Angeles. “TV is not going to be a medium that adults will watch anymore. Everything that is even the slightest bit provocative will have to be on cable.
“And we’re not talking about getting smut off the networks. We’re talking about things like wife battering and ‘The Burning Bed.’ Things that need to be talked about won’t get talked about. This will reduce everything on the public airwaves to ‘Little House on the Prairie.’ ”
Since July 26, Helms has been attempting to attach the 24-hour-a-day ban on indecency to other legislation. Until last week, he failed to convince his fellow lawmakers to adopt it. But with Congress moving toward adjournment, a Helms staff member said, the conservative senator was able to get voice votes in both houses approving the ban as an amendment to the appropriations bill.
The law is a direct outgrowth of the FCC’s 18-month-old crackdown on indecent broadcasting, beginning with reprimands against three radio stations in Los Angeles, Santa Barbara and Philadelphia in April, 1987.
The warnings against “shock jock” sexual innuendo, off-color record lyrics and profane radio drama were extended to television in January when the commission formally censured and later fined a Kansas City television station for broadcasting the soft-core feature film “Private Lessons” in prime time.
Those commission actions were challenged in federal court by 15 broadcast organizations, including the broadcasters association, the three major television networks, the Motion Picture Assn. of America and Action for Children’s Television.
According to the broadcasters association’s Wurfel, those same 15 organizations are preparing to renew that challenge, following the approval of the Helms measure.
FCC spokesman John Kamp said the new law will transform the role of the commission from indecency regulator to decency enforcer.
“The major questions remain alive,” Kamp said. “If indecency can’t be wholly suppressed under the First Amendment--which has always been (the FCC’s) position--then that constitutional question is applicable to Helm’s bill.”
The Helms ban stands in conflict with a 3-month-old U.S. District Court of Appeals decision in the original broadcasters association-sponsored lawsuit. In June, a three-justice panel ruled that the FCC did have the right to regulate indecent broadcasting, but had to clarify in public hearings how and when indecent broadcasting could air. The judges did not approve a 24-hour-a-day ban and, in their ruling, questioned the current FCC policy of restricting indecent programming to between midnight and 6 a.m.
The commission has held that indecent fare should only be aired during hours when children are not likely to be among the audience. Indecency, as it was defined under an 11-year-old U.S. Supreme Court decision, is language or pictures that display or discourse on human sexual and excretory functions in a manner that is “patently offensive.”
For nearly 10 years, the commission simply did not act on most indecency complaints. As one of his first acts as FCC chairman, Commissioner Dennis Patrick began the enforcement which led to the court cases and Helms’ ban.
Patrick issued a statement after the June Court of Appeals decision, promising to hold immediate hearings to clarify when and how adult programming could be broadcast. But the hearings were never scheduled. Kamp said that they probably will be be postponed indefinitely now in light of the new statute and the expected court challenges.