Justices Reject Broadcast Ban on ‘Indecency’

The Supreme Court refused Monday to permit federal regulators to impose a round-the-clock ban on sexually explicit, or “indecent,” radio and television broadcasts.

As a result, broadcasters may continue to air such programs at night during times still to be determined by the Federal Communications Commission. They may not, however, broadcast them in daytime or early evening hours when children are likely to be tuned in.

The court has defined “indecent” works as those that have some serious value, but may contain vulgar words.

Still banned at all times is so-called “obscene” programming, which the high court has defined as works appealing to prurient interests without any redeeming artistic, literary, political or scientific value.

So-called indecent material has been permitted after 8 p.m. while the case before the court was being decided.

By a 6-2 vote in the case (FCC vs. Action for Children’s Television, 91-952), the justices declined to hear the Bush Administration’s appeal of a ruling that struck down as unconstitutional a 1988 federal law that banned all sexually explicit broadcasts over the airwaves. That measure, sponsored by Sen. Jesse Helms (R-N.C.), ordered the FCC to enforce its ban on indecency 24 hours per day.

The court made its decision without comment. However it has made clear in past rulings that while government may ban obscenity, it may not outlaw the less offensive “indecent” material unless it can show that children would be harmed.

Lawyers for the Bush Administration urged that the Helms amendment be reinstated, contending that “indecent” broadcasts “intrude on the privacy” of listeners and viewers, who can be suddenly confronted with an offending broadcast while changing channels. They also argued that children now tune in to radio and television programs at all hours of the night.

But a coalition of broadcasters and First Amendment advocates opposed the 24-hour ban as unnecessary and unconstitutional. If it were approved, TV and radio would be limited to only what is suitable for children, they argued. They also said they feared the government could use such power to crack down on serious drama and art.

As a result of the decision, the FCC now must devise a new evening time period when such “indecent” broadcasts are allowed. Under the lower court orders, federal regulators must “identify some reasonable period of time during which indecent material may be broadcast.”

In recent years, the regulators have proposed several alternatives, including after 8 p.m., 10 p.m. or midnight. But none has been approved by the courts.

Cable television broadcasts, which do not travel over publicly regulated airwaves, are not affected by the government regulations.

The dispute that culminated in Monday’s high court decision had its beginnings in the Ronald Reagan Administration.

In 1987, the FCC announced its intention to crack down on indecent broadcasts. It focused its attention on the so-called “shock jock” radio personalities whose off-color comments provoked thousands of complaints to the FCC.

The agency also issued a warning to KPFK-FM, a Pacifica radio station in Los Angeles, for the 10 p.m. broadcast of a drama containing explicit accounts of homosexual activity.

The FCC proposed to forbid such broadcasts, except between midnight and 6 a.m.

But while that issue was being fought in the courts, Congress entered the fray. In the midst of the 1988 campaign, Helms proposed a total ban on such broadcasts. The measure won quick approval from Congress and was signed into law by Reagan.

The FCC then said that it intended to impose the 24-hour-a-day ban on “material that describes sexual or excretory activities or organs in terms that are patently offensive under contemporary community standards.”

“There is a right to privacy here. A lot of people don’t want that kind of programming coming into their homes,” said James P. Mueller, an attorney for the Children’s Legal Foundation, a Phoenix-based anti-pornography group that supported the FCC.

But the broadcasters argued that the Helms amendment gave the government too much power to arbitrarily limit free speech.

“They (FCC officials) talked about including sexual innuendoes and double-entendres,” said Peggy Charren, president of Action for Children’s Television. “You could do-in Bullwinkle and Bart Simpson with a rule like that. If it’s really terrible, you can hit the ‘off’ button,” she added.

Charren’s group led a challenge to the FCC rule in the U.S. Court of Appeals in Washington. In a 3-0 ruling, that court last May struck down the 24-hour ban as a violation of the First Amendment.

In this instance, the appeals court said, the traditional daytime and early evening ban on sexually explicit broadcasts protects children. But the government does not have reason to extend that ban into the night hours when mostly adults are tuned in. Judge Abner Mikva wrote the appeals court opinion, which was joined by then-Judge Clarence Thomas.

The Bush Administration and the anti-pornography groups appealed that conclusion to the Supreme Court. But without comment, the justices rejected those appeals Monday. Only Justices Byron R. White and Sandra Day O’Connor voted to hear the appeals. Because he joined the lower court ruling, Justice Thomas took no part in the decision.