On June 7, Congress sent President Bush a bill to raise indecency fines 10-fold, from $32,500 per violation to $325,000. The major increase in fines, coupled with the ambiguity of the FCC’s definition of indecency, will undermine free speech as broadcast television and radio stations take heavy precautions to avoid violating the vaguely defined laws.

Since Congress began considering new legislation and the FCC imposed higher fines for indecency following the momentary exposure of Janet Jackson's breast in the 2004 Super Bowl, broadcasters have felt a severe chilling effect, to the detriment of programming. In November of 2004, many ABC affiliates refused to air the acclaimed film Saving Private Ryan because they feared FCC fines.

The primary precedent for indecency fines is the Supreme Court case FCC v. Pacifica Foundation (1978), but the 27 year-old-case's relevance for the current media climate is questionable.¹ Further complicating the debate, the Supreme Court has ruled several times that indecency is protected by the First Amendment — unlike obscenity, which is said to lack serious literary, artistic, scientific or political value.

Congressional representatives in the public eye support indecency fines in the name of protecting children, but there are other possible ways to control what children see and how it affects them — not least of all parental supervision, as well as implementing new technology to help. As Paul K. McMasters reports, the majority of Americans want to control TV viewing in their own home.² Reports about viewer complaints regarding indecency can easily become misleading, making it seem like more people are offended by a program than actually are. According to the Wall Street Journal, of the 6,500 complains the FCC received before fining CBS $3.6 million for an episode of “Without a Trace” featuring a brief teen sexy orgy scene, all but three originated as computer-generated form letters.³ Even while the effects of "indecent" programming on children remain in dispute, it is clear that government regulation at the cost of important free expression is not the only, or the best, tool for monitoring children's TV viewing.

The good news about the indecency legislation sent to President Bush is that it does not include fines for individuals, which were included in the House’s version of the indecency bill. Judith Platt, Director of Communications/Public Affairs at the Association of American Publishers' Freedom to Read Foundation, explained individual fines by saying,

These fines would apply against actors in pre-recorded scripted programs. They would apply against recording artists if a radio station played an un-edited version of their song. They would apply against YOU if you were to call-in to a local radio station and use profanity on the air.

Although, it is noteworthy that individual fines were excluded from the legislation Congress sent to President Bush, even without these fines the indecency legislation raises serious concerns. By regulating broadcast media through steep indecency fines, Congress exerts a form of control that challenges both the First Amendment and the capability of families to monitor their own TV viewing using the remote, or other similar devices.

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