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.
- An AP Report on the Senate Vote
Associated Press Writer Laurie Kellman discusses the Senate vote raise to indecency fines 10-fold.
- ACLU Analysis of the Effects on Increased Indecency Fines
When the House passed the Broadcast Decency Enforcement Act of 2004, the ACLU expressed concern that increased indecency fines would chill free speech, especially given the vague definition of indecency.
- Rep. Bernard Sanders's Statement in Opposition to HR 310
Rep. Sanders spoke about the need to resist the growing "specter of censorship" in our country and urged the House not pass the Broadcast Decency Enforcement Act of 2005.
- The First Amendment Center's Paul K. McMasters on the Implications for TV Viewers
McMasters reports that a majority of Americans want to control their own TV viewing, but that new legislation may limit their right to do so.
- » Jonathan Rintels for the Huffington Post on the "'Indecency' Fraud."
Rintels shows how tallies of viewer complaints become misleading and explains why the raise in fines is a defeat, rather than a victory, for parents.
- Lauren Horwitch of Backstage.com on How the House Bill and the Senate Bill Differ
In opposition to the House bill, the Senate bill–the bill sent to President Bush–does not include fines for individuals who violate FCC indecency regulations. As a result, organizations such as SAG and AFTRA support the Senate bill. SAG National President Alan Rosenberg said that he thinks that such laws are "unnecessary infringements on our right to freedom of speech," but still sees the Senate bill as a victory because it does not impose fines on individuals.
- Robert McChesney and Ben Scott for the Detroit Free Press on Alternatives to Increased Fines
McChesney and Scott explore the link between media consolidation and increased "indecent" programming, and argue for more diversity and consumer choice in the media industry as an alternative to government censorship. "The answer to concerns over indecency, then, is not less speech, but more speech" they say.
- "The Uses of Indecency” by Svetlana Mintcheva (Summer 2004)
- “Indecency Again” by Joan E. Bertin (Spring 2004)
- NCAC and Other First Amendment Groups Condemn Congressional Efforts to Expand FCC Decency Rules (Spring 2004)