Court Voids FCC’s ‘Indecency’ Ban : Communications: The appeals panel chastises Congress and regulators, saying offensive--but not obscene--speech must be allowed on radio and TV.

The Federal Communications Commission’s 24-hour-a-day ban on the broadcast of “indecent” programming is unconstitutional, the U.S. Court of Appeals for the District of Columbia ruled Friday.

The court held that the ban--adopted in 1989 under a directive from Congress that was passed at the instigation of Sen. Jesse Helms (D-N.C.)--”impermissibly intruded on constitutionally protected expression. . . . “

In a unanimous decision written by Judge Abner J. Mikva, the panel chastised both Congress and the regulatory agency, saying that the ban was enacted, despite an earlier ruling by the same court that indecent--but not obscene--speech must be allowed on radio and television in some fashion.

The appeals court, responding to a lawsuit filed by a number of broadcasters, civil liberties groups and Action for Children’s Television, a consumer watchdog organization, had barred the FCC from enforcing the ban shortly after it was enacted. Friday’s decision, therefore, changes little in the way of current policy. But elated plaintiffs said that the action is a victory, nonetheless, which sends a strong message to both Congress and the FCC about freedom of speech.

“I’m ecstatic,” said David Salniker, executive director of Pacifica Radio, the community radio network whose 1987 broadcast on KPFK-FM in Los Angeles of a play about AIDS, called “Jerker,” in part, prompted Helms to press for the ban. “The fact that the decision was unanimous is very important, because one of the judges (Clarence Thomas) is a conservative Republican appointee.”

“This decision is a significant one, because it says that broadcasters are going to have some latitude to deal with difficult subjects that are not obscene during at least some hours of the broadcast day,” said Tim Dyk, who was the chief litigator for most of the groups that opposed the restrictions.

FCC Chairman Alfred C. Sykes said that he was “disappointed in the outcome” and agency insiders speculated that an appeal to the Supreme Court is likely.

“I wouldn’t be surprised if it goes to the Supreme Court,” said FCC chief counsel Robert Pettit. “The case raises a constitutional issue, which is whether a 24-hour ban on indecent broadcasts is per se unconstitutional.”

If the case were to go to the high court, Pettit said, the FCC would argue that it has evidence to prove that children--whom it defines as anyone 17 years of age or younger--watch television at all hours.

Pettit said that, despite concerns by broadcasters such as Pacifica that the ban is aimed at them, the agency is concerned more about so-called “shock jocks” on morning and afternoon radio programs.

“There have been about 12 instances in which the language has been found to be actionable,” Pettit said. “One was a call-in show on how to masturbate with your dog.”

Under Friday’s ruling, the FCC must now conduct hearings and devise a procedure for determining just when it is appropriate for indecent material to be aired. Earlier court decisions have agreed that, for those hours when children are likely to be listening, indecent speech may be regulated. But the Supreme Court previously has ruled that a substantial number of hours must be set aside for protected speech.

For years, the commission did just that, allowing adult-oriented material to be broadcast between the hours of 10 p.m. and 6 a.m. But in 1987, the rules began to change. First, the so-called “safe haven” for adult programming was shortened so that it did not begin until midnight. That rule was challenged in court, and the FCC lost.

But before a new “safe haven” could be established, Congress passed a statute ordering the FCC to impose a total ban and the FCC complied. In doing so, the agency changed its definition of the age at which someone is considered a child, from 12 to 17, and said that children--as currently defined--can be found in the television audience 24 hours a day.

The commission’s definition of indecency, which has been upheld by earlier court decisions, includes “language or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities or organs.”

Opponents of the ban said that they do not expect the issue to end with Friday’s ruling.