A Ban That Goes Too Far : Appeals court wisely strikes down FCC’s 24-hour prohibition of “indecent” speech

The U.S. Court of Appeals last week struck down a misguided attempt by the Federal Communications Commission to impose an onerous ban on constitutionally protected speech.

The FCC rule, adopted in 1988 by congressional directive, came under challenge because it would have imposed a 24-hour ban on “indecent” broadcasts. The agency defines indecent as “language or material that describes--in terms patently offensive, as measured by contemporary standards for the broadcast medium--sexual or excretory activities or organs.”

In arguments before the appeals court, the FCC asserted that a 24-ban was necessary to protect children who are part of radio and television audiences “at all hours of the day and night.”

While the court agreed in principle that the government has an interest in protecting children from indecent broadcasts, it determined that the ban “impermissibly intruded on constitutionally protected expression.” The court instructed the agency to conduct hearings to devise a procedure for determining when it is permissible for indecent material to be aired.

That decision is not only wise but it is consistent with court doctrine. In FCC vs. Pacifica Foundation (1978), the Supreme Court had to decide whether the FCC action to restrict an afternoon broadcast of comedian George Carlin’s “Filthy Words” monologue was forbidden censorship in violation of the First Amendment.

The court held that the FCC should not have the unlimited authority to decide what speech, protected in other media, should be banned from the airwaves. Rather, indecent speech should be limited to the late evening--those hours when fewer children or other listeners might be in the audience.

Until 1987 that was precisely what the FCC did. Broadcasters were prohibited from airing indecent material between the hours of 6 a.m. and 10 p.m. The FCC tried to extend the prohibition to 12 a.m., but an appeals court threw out that ruling because the agency had not demonstrated that such a limitation was necessary to protect children.

Over the years court doctrine has clearly protected the right of adults to listen to or view broadcasts--albeit during late night hours--that may be deemed indecent. As for children, the best approach to monitoring what minors watch or hear is still parental supervision.