How much freedom does indecency require? Until last Tuesday, "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" was permitted--permitted, not forbidden--between midnight and 6 a.m. A six-hour window might seem big enough to some citizens, but not to the federal appeals court in the District of Columbia that overturned the rule.
The court last week ruled that "the government did not properly weigh viewers' and listeners' First Amendment rights when balancing the competing interests in determining the widest safe harbor period consistent with the protection of children." The ship for which the "safe harbor" is being provided is, note well, the ship of indecency, not the ship of child welfare.
Chief Judge Abner Mikva and Judges Patricia Wald and Harry Edwards also ruled that cable television may not reject indecent programs on public access channels and sent back to the Federal Communications Commission for further discussion a rule requiring cable operators to restrict indecent programs to channels that would be accessed only by written request.
All three judges were appointed by President Jimmy Carter, and their decision, though it did not change the FCC definition of indecency, may well have a polarizing effect. Sen. Jesse Helms (R-N.C.) led the campaign to have Congress order the FCC to regulate the broadcasting of indecent material, and Helms has called on President Clinton and his attorney general, Janet Reno, to appeal the decision. If Clinton fails to do that, he opens himself to the charge of being a captive of the "media elite" famously accused of holding contempt for "family values." And yet if he does appeal, the liberal appeals court's decision will probably be upheld.
The reason is that, under the U.S. Constitution, even those whose values are not family values are free to express them. This editorial page has no hesitation in deploring the progressive degradation of public taste. Clearly, a new wave of indecency is crashing on the American shore and Howard Stern is riding it. But the line that divides those who welcome it from those who deplore it is cultural rather than political. And it is probably impossible and quite certainly unconstitutional for the federal government to enforce a cultural standard, even when it does so in the interests of children. This is particularly true when the standard is imposed in the name of a "community" defined as loosely as the television audience. That the court's decision may mean more tasteless and disgusting fare on television is bad news. But the government cannot protect American society from the nation's own cultural decline. This is a job the citizens must do for themselves.