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
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From: clarinews@clarinet.com (GREG HENDERSON)
Newsgroups: clari.news.law.supreme,clari.news.children,clari.news.tv,
        clari.news.sex
Message-id: <court-indecencyU2M21025ae@clarinet.com>
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.


