From: kadie@herodotus.cs.uiuc.edu (Carl M. Kadie) Subject: Justices refuse to allow total ban on indecent TV, radio material Message-ID: <1992Mar7.133233.7108@m.cs.uiuc.edu> Date: Sat, 7 Mar 1992 13:32:33 GMT Copyright 1992 by UPI. Reposted with permission from the ClariNet Electronic Newspaper newsgroup clari.news.law.supreme, et al. For more info on ClariNet, write to info@clarinet.com or phone 1-800-USE-NETS. From: clarinews@clarinet.com (GREG HENDERSON) Newsgroups: clari.news.law.supreme,clari.news.children,clari.news.tv, clari.news.sex Message-id: Keywords: supreme court, legal, children, special interest, television, media, pornography, social issues Date: Mon, 2 Mar 92 7:16:17 PST WASHINGTON (UPI) -- The Supreme Court Monday declined to let the government institute a ban on material it considers ``indecent'' from television and radio broadcasts. The court, without comment, let stand a lower court ruling that the First Amendment allows the government to limit but not totally bar indecent material from the public airwaves. Justices Byron White and Sandra Day O'Connor voted to hear the government appeal, but four votes are needed for a case to be accepted. Justice Clarence Thomas considered the issue as an appeals court judge and so took no part in Mondlay's decision not to grant the case. The Federal Communications Commission traditionally has allowed material deemed indecent -- but not pornographic -- to air between 10 p.m. and 6 a.m. The government had believed children were unlikely to be exposed to material broadcast during those hours. But the administration, backed by Congress and armed with data it says shows children and teenagers are watching television and listening to radio at all times, wanted permission to more strictly sanction the types of language and images broadcast over public airwaves 24 hours a day. The government appeal was opposed by the three major television networks and groups including the American Civil Liberties Union, National Public Radio, People for the American Way and the Reporters Committee for Freedom of the Press. In 1988, Congress passed a regulation to require the FCC to enforce its ban on indecent broadcasting at all times. That ban was to take effect Jan. 31, 1989. But the U.S. Court of Appeals for the District of Columbia Circuit struck down the FCC regulation and the congressional statute that mandated its enforcement as violations of the First Amendment freedom of speech protection. The appeals court ordered the FCC to identify a ``reasonable period of time'' when indecent speech would be allowed. Since 1927, federal law has prohibited the broadcast of any ``obscene, indecent or profane language.'' But the nation's definition of ``obscenity'' has changed, in large part due to Supreme Court decisions. While the court has said obscene language does not have First Amendment protection, other less offensive language -- which the government categorizes as ``indecent'' -- has full constitutional protection. In 1975, the FCC defined ``indecency'' as a level of language less objectionable than obscenity that ``describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities and organs.'' Three years later the Supreme Court upheld the FCC's finding that a daytime radio broadcast of comedian George Carlin's ``seven dirty words'' act was indecent. But the commission took a limited approach to enforcement of the regulations, essentially allowing a ``safe harbor'' between 10 p.m. and 6 a.m. for programming that might not be acceptable during daytime hours. No broadcasters were sanctioned for violating the policy between 1975 and 1987. But in 1987 the FCC decided to become more strict, declaring three broadcasts that would not have violated the ``dirty words'' test to be indecent. Two of those programs aired after 10 p.m. The FCC also indicated it was considering pushing the ``safe harbor'' back until midnight. But the D.C. Circuit vacated the sanctions for the post-10 p.m. broadcasts and ordered the FCC to hold a full hearing to decide when the safe harbor applies. ``Broadcast material that is indecent but not obscene is protected by the First Amendment,'' the appeals court held. ``The FCC may regulate such material only with due respect for the high value our Constitution places on freedom and choice in what the people say and hear.'' But Congress then entered the debate with the 1988 ``Helms Amendment. '' Named after its sponsor, Sen. Jesse Helms, R-N.C., the rider to an appropriations bill ordered the FCC to impose a 24-hour-a-day ban on broadcasting indecent language. The FCC then issued a ban, but the D.C. Circuit stayed enforcement pending further review. In the meantime, the Supreme Court ruled that a similar blanket ban on indecent commercial telephone messages was unconstitutional. But the FCC reasoned that because there are more safeguards in telephone messages than public airwaves, a ban on broadcast indecency would still be allowed. A new three-judge panel of the D.C. Circuit -- including now-Justice Thomas -- disagreed, saying the Supreme Court's ruling on telephone messages ``affirmed the protected status of indecent speech.'' The administration differed. ``Children are present in the audience for late night television and radio in large numbers, and the on-off switch on the television or radio in virtually every household is the only ticket to admission,'' the Justice Department wrote the high court. ``Indecent broadcasting cannot be restricted to those households in which it is welcome.'' But opponents said a total ban would have let the FCC effectively censor news, informational programs, political advertising, serious drama, satire and even musical recordings. ------ 91-883 Children's Legal Foundation, et al., vs. Federal Communications Commission, et al. 91-952 Federal Communications Commission, et al., vs. Action for Children's Television, et al.