Order Code RL32222
CRS Report for Congress
Received through the CRS Web
Regulation of Broadcast Indecency:
Background and Legal Analysis
Updated June 23, 2006
Henry Cohen
Legislative Attorney
American Law Division
Congressional Research Service ˜ The Library of Congress

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The FCC’s Indecency Regulations:
Background and Legal Analysis
Summary
Two prominent television events recently brought increased attention to the
FCC and its indecency regulations. The airing of the 2003 Golden Globe Awards
and the subsequent ruling by the FCC’s Enforcement Bureau, coupled with the
controversy surrounding the 2004 Super Bowl halftime show, brought broadcast
indecency to the forefront of the congressional agenda during the 108th Congress.
Several bills were introduced, but not enacted, in the 108th Congress to increase the
penalties imposed for broadcast indecency and to prohibit the broadcast of certain
words and phrases in any grammatical form. Similar legislation aimed at increasing
penalties has been introduced in the 109th Congress (H.R. 310, S. 193, S. 616). Other
legislation addressing specific types of programming has also been introduced (H.R.
1420 and H.R. 1440). On June 15, 2006, the President signed S. 193 into law and
it became P.L. 109-235, the Broadcast Decency Enforcement Act of 2005; it
increased the penalty for indecent broadcasts tenfold.
This report provides background on the two events in question, discusses the
legal evolution of the FCC’s indecency regulations, and provides an overview of how
the current regulations have been applied and pending legislation. The final section
of the report considers whether prohibiting the broadcast of “indecent” words
regardless of context would violate the First Amendment.

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Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Evolution of the FCC’s Indecency Regulations . . . . . . . . . . . . . . . . . . . . . . . 3
Current Regulations and Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Explicitness or Graphic Nature of Material . . . . . . . . . . . . . . . . . . . . . . 8
Dwelling or Repetition of Potentially Offensive Material . . . . . . . . . . . 9
Pandering or Titillating Nature of Material . . . . . . . . . . . . . . . . . . . . . . 9
Golden Globe Awards Decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Super Bowl Halftime Show Decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Other Recent Enforcement Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Infinity Broadcasting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Clear Channel Broadcasting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Congressional Response . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
108th Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
109th Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Would Prohibiting the Broadcast of “Indecent” Words Regardless of
Context Violate the First Amendment? . . . . . . . . . . . . . . . . . . . . . . . . 21
Broadcast Media . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Strict Scrutiny . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

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Regulation of Broadcast Indecency:
Background and Legal Analysis
Introduction
Two prominent television events in 2003 and 2004 brought increased attention
to the Federal Communications Commission (FCC) and its broadcast indecency
regulations.1 The airing of the 2003 Golden Globe Awards and the subsequent ruling
of the FCC’s Enforcement Bureau, coupled with the controversy surrounding the
2004 Super Bowl half-time show, have brought broadcast indecency to the forefront
of the congressional agenda. During the 108th Congress, several bills were
introduced to increase the penalties imposed for broadcast indecency and prohibit the
broadcast of certain words and phrases though none of the legislation was enacted.
In addition, both the House and Senate held hearings on broadcast indecency.
Similar legislation was introduced in the 109th Congress, and P.L. 109-235 (2006),
which increased the penalties for broadcast indecency, was enacted. This report
provides background on the two events in question, discusses the legal evolution of
the FCC’s indecency regulations, and provides an overview of how the current
regulations have been applied and pending legislation. The final section of the report
considers whether prohibiting the broadcast of “indecent” words regardless of
context would violate the First Amendment.
Background
On January 19, 2003, broadcast television stations in various parts of the
country aired the Golden Globe Awards. During the awards, the performer Bono, in
response to winning an award, uttered the phrase “this is really, really f[***]ing
brilliant.”2 In response to this utterance, the FCC received over 230 complaints
alleging that the program was obscene or indecent, and requesting that the
1 The FCC’s indecency regulations only apply to broadcast radio and television, and not to
cable television. The distinction between broadcast and cable television arises in part from
the fact that the rationale for regulation of broadcast media — the dual problems of
spectrum scarcity and signal interference — do not apply in the context of cable. As a
result, regulation of cable television is entitled to heightened First Amendment scrutiny. See
Turner Broadcasting v. Federal Communications Commission, 512 U.S. 622 (1994). Cable
television is also distinguished from broadcast television by the fact that cable involves a
voluntary act whereby a subscriber affirmatively chooses to bring the material into his or
home. See Cruz v. Ferre, 755 F.2d 1415 (11th Cir. 1985).
2 See In the Matter of Complaints Against Various Broadcast Licensees Regarding Their
Airing of the “Golden Globe Awards” Program, 18 F.C.C. Rcd. 19859 (2003).

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Commission impose sanctions on the licensees for the broadcast of the material in
question.3
The Enforcement Bureau of the FCC issued a Memorandum Opinion and Order
on October 3, 2003, denying the complaints and finding that the broadcast of the
Golden Globe Awards including Bono’s utterance did not violate federal restrictions
regarding the broadcast of obscene and indecent material.4 The Bureau dismissed the
complaints primarily because the language in question did not describe or depict
sexual or excretory activities or organs. The Bureau noted that while “the word
‘f[***]ing’ may be crude and offensive,” it “did not describe sexual or excretory
organs or activities. Rather, the performer used the word ‘f[***]ing’ as an adjective
or expletive to emphasize an exclamation.”5 The Bureau added that in similar
circumstances it “found that offensive language used as an insult rather than as a
description of sexual or excretory activity or organs is not within the scope of the
Commission’s prohibition on indecent program content.”6
The decision of the Enforcement Bureau was met with opposition from a
number of organizations and Members of Congress, and an appeal was filed for
review by the full Commission. FCC Chairman Michael Powell asked the full
Commission to overturn the Enforcement Bureau’s ruling.7
On March 18, 2004, the full Commission issued a Memorandum Opinion and
Order granting the application for review and reversing the Enforcement Bureau’s
earlier opinion.8 The Commission found that the broadcasts of the Golden Globe
Awards violated 18 U.S.C. 1464, but declined to impose a forfeiture on the broadcast
licensees because the Order reverses Commission precedent regarding the broadcast
of the “F-word.” This decision is discussed in detail below.
On February 1, 2004, CBS aired Super Bowl XXXVIII, with a half-time show
produced by the MTV network. The show included performers singing and dancing
provocatively, and ended with the exposure of the breast of one female performer.
The network received numerous complaints regarding the half-time performance and
FCC Chairman Michael Powell initiated a formal investigation into the incident.9
On September 22, 2004, the FCC released a Notice of Apparent Liability for
Forfeiture finding that the airing of the Super Bowl halftime show “apparently
3 Id. at 2.
4 Id.
5 Id. at 3.
6 Id.
7 FCC Chairman Seeks Reversal on Profanity, Washington Post, January 14, 2004, at E01.
8 In the Matter of Complaints Against Various Broadcast Licensees Regarding Their Airing
of the “Golden Globe Awards” Program, File No. EB-03-IH-0110 (March 18, 2004).
9 [http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-243435A1.pdf].

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violate[d] the federal restrictions regarding the broadcast of indecent material.”10 The
NAL imposes a forfeiture in the aggregate amount of $550,000 on Viacom Inc., the
licensee or ultimate parent of the licensees with regard to whom the complaint was
filed.11 This decision is discussed in detail below.
Evolution of the FCC’s Indecency Regulations
Title 18 of the United States Code makes it unlawful to utter “any obscene,
indecent, or profane language by means of radio communication.”12 Violators of this
provision are subject to fines or imprisonment of up to two years. The Federal
Communications Commission has the authority to enforce this provision by forfeiture
or revocation of license.13 The Commission’s authority to regulate material that is
indecent, but not obscene, was upheld by the Supreme Court in Federal
Communications Commission v. Pacifica Foundation.14 In Pacifica, the Supreme
Court affirmed the Commission’s order regarding the airing of comedian George
Carlin’s “Filthy Words” monologue.15 In that order, the Commission determined that
the airing of the monologue, which contained certain words that “depicted sexual and
excretory activities in a patently offensive manner,” at a time “when children were
undoubtedly in the audience” was indecent and prohibited by 18 U.S.C. § 1464.16
Pursuant to the Court’s decision, whether any such material is “patently offensive”
is determined by “contemporary community standards for the broadcast medium.”17
The Court noted that indecency is “largely a function of context — it cannot be
judged in the abstract.”18
The Commission’s order in the Pacifica case relied partially on a spectrum
scarcity argument; i.e., that there is a scarcity of spectrum space so the government
must license the use of such space in the public interest, and partially on “principles
analogous to those found in the law of nuisance.”19 The Commission noted that
10 Complaints Against Various Television Licensees Concerning Their February 1, 2004,
Broadcast of the Super Bowl XXXVIII Halftime Show, File No. EB-04-IH-0011 (September
22, 2004). [http://www.fcc.gov/eb/Orders/2004/FCC-04-209A1.html]
11 Id.
12 18 U.S.C. § 1464. “Radio communication” includes broadcast television, as the term is
defined as “the transmission by radio of writing, signs, signals, pictures, and sounds of all
kinds.” 47 U.S.C. § 153(33).
13 47 U.S.C. § 503(b).
14 438 U.S. 726 (1978).
15 The United State Court of Appeals for the District of Columbia Circuit had reversed the
Commission’s order. See 556 F.2d 9 (D.C. Cir. 1977). The Commission appealed that
decision to the Supreme Court, which reversed the lower court’s decision.
16 438 U.S. at 732.
17 Id.
18 Id. at 742.
19 Id. at 731; see, In the Matter of a Citizen’s Complaint Against Pacifica Foundation
(continued...)

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public nuisance law generally aims to channel the offensive behavior rather than to
prohibit it outright. For example, in the context of broadcast material, channeling
would involve airing potentially offensive material at times when children are less
likely to be in the audience. In 1987, the Commission rejected the spectrum scarcity
argument as a sufficient basis for its regulation of broadcast indecency, but noted that
it would continue to rely upon the validity of the public nuisance rationale, including
channeling of potentially objectionable material.20 However, in its 1987 order, the
Commission also stated that channeling based on a specific time of day was no
longer a sufficient means to ensure that children were not in the audience when
indecent material aired and warned licensees that indecent material aired after 10
p.m. would be actionable.21 The Commission further clarified its earlier Pacifica
order, noting that indecent language was not strictly limited to the seven words at
issue in the original broadcast in question, and that repeated use of those words was
not necessary to find that material in question was indecent.22
The Commission’s 1987 orders were challenged by parties alleging that the
Commission had changed its indecency standard and that the new standard was
unconstitutional. In Action for Children’s Television v. Federal Communications
Commission (ACT I), the United States Court of Appeals for the District of Columbia
Circuit upheld the standard used by the Commission to determine whether broadcast
material was indecent, but it vacated the Commission’s order with respect to the
channeling of indecent material for redetermination “after a full and fair hearing of
the times at which indecent material may be broadcast.”23
Following the court’s decision in Action for Children’s Television (ACT I), a
rider to the Commerce, Justice, State FY89 Appropriations Act required the FCC to
promulgate regulations to ban indecent broadcasts 24 hours a day.24 The
Commission followed the congressional mandate and promulgated regulations
prohibiting all broadcasts of indecent material.25 The new regulations were
challenged, and the United States Court of Appeals for the District of Columbia
19 (...continued)
Station WBAI (FM), New York, New York, 56 F.C.C.2d 94 (1975).
20 In the Matter of Pacifica Foundation, Inc. d/b/a Pacifica Radio Los Angeles, California,
2 F.C.C. Rcd. 2698 (1987). Two other orders handed down the same day articulate the
Commission’s clarified indecency standard. See also In the Matter of the Regents of the
University of California, 2 F.C.C. Rcd. 2703 (1987); In the Matter of Infinity Broadcasting
Corporation of Pennsylvania, 2 F.C.C. Rcd. 2705 (1987).
21 The Commission noted Arbitron ratings indicating that a number of children remain in the
local audience well after 10 p.m. See 2 F.C.C. Rcd. 1698, ¶ 16.
22 2 F.C.C. Rcd. 2698, ¶¶ 12 and 15.
23 852 F.2d 1332, 1344 (1988).
24 P.L. 100-459, § 608.
25 Enforcement of Prohibitions Against Broadcast Obscenity and Indecency, 4 F.C.C. Rcd.
457 (1988).

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Circuit vacated the Commission’s order.26 In so doing, the court noted that in ACT
I it held that Commission “must identify some reasonable period of time during
which indecent material may be broadcast,” thus precluding a ban on such broadcasts
at all times.27
In 1992, Congress enacted the Public Telecommunications Act of 1992, which
required the FCC to promulgate regulations to prohibit the broadcasting of indecent
material from 6 a.m. to midnight, except for broadcasts by public radio and television
stations that go off the air at or before midnight, in which case such stations may
broadcast indecent material beginning at 10 p.m.28 The Commission promulgated
regulations as mandated in the act.29 The new regulations were challenged, and a
three-judge panel of the United States Court of Appeals for the District of Columbia
Circuit subsequently vacated the Commission’s order implementing the act and held
the underlying statute unconstitutional.30 In its order implementing the act, the FCC
set forth three goals to justify the regulations: (1) ensuring that parents have an
opportunity to supervise their children’s listening and viewing of over-the-air
broadcasts; (2) ensuring the well being of minors regardless of supervision; and (3)
protecting the right of all members of the public to be free of indecent material in the
privacy of their homes.31 The court rejected the third justification as “insufficient to
support a restriction on the broadcasting of constitutionally protected indecent
material,” but accepted the first two as compelling interests.32 Despite the finding of
compelling interests in the first two, the court found that both Congress and the FCC
had failed “to tailor their efforts to advance these interests in a sufficiently narrow
way to meet constitutional standards.”33
Following the decision of the three-judge panel, the Commission requested a
rehearing en banc.34 The case was reheard on October 19, 1994, and, on June 30,
1995, the full court of appeals held the statute unconstitutional insofar as it prohibited
the broadcast of indecent material between the hours of 10 p.m. and midnight on non-
public stations.35 In so doing, the court held that while the channeling of indecent
26 Action for Children’s Television v. Federal Communications Commission (ACT II), 932
F.2d 1504 (1991), cert. denied, 503 U.S. 913 (1992).
27 Id. at 1509.
28 P.L. 102-356, § 16, 47 U.S.C. § 303 note.
29 In the Matter of Enforcement of Prohibitions Against Broadcast Indecency in 18 U.S.C.
1464, 8 F.C.C. Rcd. 704 (1993).
30 Action for Children’s Television v. Federal Communications Commission, 11 F.3d 170
(D.C. Cir. 1993).
31 8 F.C.C. Rcd. at 705-706.
32 11 F.3d at 171.
33 Id.
34 Action for Children’s Television v. Federal Communications Commission, 15 F.3d 186
(D.C. Cir. 1994).
35 Action for Children’s Television v. Federal Communications Commission (ACT III), 58
(continued...)

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broadcasts between midnight and 6 a.m. “would not unduly burden the First
Amendment,” the distinction drawn by Congress between public and non-public
broadcasters “bears no apparent relationship to the compelling government interests
that [the restrictions] are intended to serve.”36 The court remanded the regulations
to the FCC with instructions to modify the regulations to permit the broadcast of
indecent material on all stations between 10 p.m and 6 a.m.
Current Regulations
Following the decision in ACT III, the Commission modified its indecency
regulations to prohibit indecent broadcasts from 6 a.m. to 10 p.m.37 The modified
regulations became effective August 28, 1995.38 These regulations have been
enforced primarily with respect to radio broadcasts and thus have been applied more
often to indecent language rather than to images.39 Under these regulations,
broadcasts deemed indecent were subject to a forfeiture of up to $32,500 per
violation,40 with the FCC’s considering each utterance of an indecent word as a
separate violation, rather than viewing the entire program as a single violation.41
Fines may be levied against broadcast stations, but not against broadcast
networks. The FCC appears also to have the statutory authority to fine performers
35 (...continued)
F.3d 654 (D.C. Cir. 1995), cert. denied, 516 U.S. 1043 (1996).
36 58 F.3d at 656.
37 Enforcement of Prohibitions Against Broadcast Indecency in 18 U.S.C. § 1464, 10 F.C.C.
Rcd. 10558 (1995); 47 C.F.R. 73.3999(b). Subsection (b) prohibits the broadcast of material
which is obscene without any reference to time of day. Broadcast obscenity will not be
discussed in this report. For more information on obscenity, see CRS Report 95-804,
Obscenity and Indecency: Constitutional Principles and Federal Statutes, by Henry Cohen,
and CRS Report 98-670, Obscenity, Child Pornography, and Indecency: Recent
Developments and Pending Issues, by Henry Cohen.
38 60 FR 44439 (August 28, 1995).
39 Enforcement actions based on televised broadcast indecency are rare. However, the
Commission recently issued a Notice of Apparent Liability for the broadcast of indecent
material during a televised morning news program. During the program, the show’s hosts
interviewed performers with a production entitled “Puppetry of the Penis,” who appeared
wearing capes but were otherwise nude. A performer’s penis was exposed during the
broadcast. See In the Matter of Young Broadcasting of San Francisco, Inc., File No. EB-02-
IH-0786 (January 27, 2004). See also In the Matter of Complaints Against Various
Licensees Regarding Their Broadcast of the Fox Television Network Program “Married by
America” on April 7, 2003, File No. EB-03-IH-0162 (October 12, 2004).
40 Under 47 U.S.C. § 503(b)(2)(A), the maximum fine per violation is $25,000. However,
the maximum forfeiture amount was increased to $32,500 pursuant to the Debt Collection
Improvement Act of 1996, Public Law 104-134, which amended the Federal Civil Monetary
Penalty Inflation Adjustment Act of 1990, Public Law 101-410. See 47 C.F.R. § 1.80.
41 Regulations set a maximum forfeiture of $325,000 for any single act or failure to act,
which arguably limits the forfeiture for a single broadcast. See 47 C.F.R. § 1.80.

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for uttering indecent words,42 but it has taken the position that “[c]ompliance with
federal broadcast decency restrictions is the responsibility of the station that chooses
to air the programming, not the performers.”43
On June 15, 2006, the President signed S. 193, 109th Congress, into law, and it
became P.L. 109-235, the Broadcast Decency Enforcement Act of 2005. This law
increased the penalty for indecent broadcasts tenfold, to $325,000 for each violation,
with a maximum of $3 million “for any single act or failure to act.” This increased
penalty may be levied against “a broadcast station licensee or permittee; or ... an
applicant for any broadcast license, permit, certificate, or other instrument or
authorization issued by the Commission.” If the FCC were to change its policy and
impose fines on performers, it could apparently do so only under the provision
(which remains in effect) that authorizes forfeitures of up to $32,500 per violation.44
To determine whether broadcast material is in fact indecent, the Commission
must make two fundamental determinations: (1) that the material alleged to be
indecent falls within the subject matter scope of the definition of indecency — the
material in question must describe or depict sexual or excretory organs or activities;
and (2) that the broadcast is patently offensive as measured by contemporary
community standards for the broadcast medium.45 If the material in question does
not fall within the subject matter scope of the indecency definition,46 or if the
broadcast occurred during the “safe harbor” hours (between 10 p.m. and 6 a.m.), the
complaint is usually dismissed.47 However, if the Commission determines that the
complaint meets the subject matter requirements and was aired outside the “safe
42 47 U.S.C. § 503(b)(1)(D) provides that the FCC may impose a forfeiture penalty upon any
“person” who violates 18 U.S.C. § 1464, which makes it a crime to “utter” indecent
language. In addition, 47 U.S.C. § 503(b)(6)(B) provides that the FCC may not impose a
forfeiture penalty on a person who does not hold a broadcast station license if the violation
occurred more than 1 year prior to the date of issuance of the required notice or notice of
apparent liability. This suggests that the FCC may fine a performer if the violation occurred
within 1 year of such date.
43 Complaints Against Various Television Licensees Concerning Their February 1, 2004,
Broadcast of the Super Bowl XXXVIII Halftime Show, File No. EB-04-IH-0011 (September
22, 2004). [http://www.fcc.gov/eb/Orders/2004/FCC-04-209A1.html]
44 See note 40, supra.
45 See In the Matter of Industry Guidance on the Commission’s Case Law Interpreting 18
U.S.C. § 1464 and Enforcement Policies Regarding Broadcast Indecency, File No. EB-00-
IH-0089 (April 6, 2001). [http://www.fcc.gov/eb/Orders/2001/fcc01090.html]
46 The Commission’s Enforcement Bureau initially dismissed the complaint against
broadcast licensees for airing the 2003 Golden Globe Awards, in which performer Bono
uttered the phrase “this is really, really f[***]ing brilliant,” due primarily to the fact that the
language in question did not describe or depict sexual and excretory activities or organs.
18 F.C.C. Rcd. 19859 (2003). The decision of the Enforcement Bureau has since been
reversed. This case is discussed below.
47 Id.

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harbor” hours, the broadcast in question is evaluated for patent offensiveness.48 The
Commission notes that in determining whether material is patently offensive, the full
context is very important, and that such determinations are highly fact-specific.
The Commission has identified three factors that have been significant in recent
decisions in determining whether broadcast material is patently offensive:
(1) the explicitness or graphic nature of the description or depiction of sexual or
excretory organs or activities; (2) whether the material dwells on or repeats at
length descriptions of sexual or excretory organs or activities; (3) whether the
material appears to pander or is used to titillate, or whether the material appears
to have been presented for its shock value.49
An overview and analysis of cases addressing each of these factors follows.
Explicitness or Graphic Nature of Material. Generally, the more explicit
or graphic the description or depiction, the greater the likelihood that the material
will be deemed patently offensive and therefore indecent. For example, the
Commission imposed a forfeiture on a university radio station for airing a rap song
that included a line depicting anal intercourse.50 In that case, the Commission
determined that the song described sexual activities in graphic terms that were
patently offensive and therefore indecent. Since the song was broadcast in the mid-
afternoon, there was a reasonable risk that children were in the audience, thus giving
rise to the Commission’s action.51
Broadcasts need not be as graphic as the song in the above case to give rise to
the imposition of an FCC forfeiture. Broadcasts consisting of double entendres or
innuendos may also be deemed indecent if the “sexual or excretory import is
unmistakable.” The FCC issued a notice of apparent liability and imposed a
forfeiture on several stations for airing a song that included the following lines: “I
whipped out my Whopper and whispered, Hey, Sweettart, how’d you like to Crunch
on my Big Hunk for a Million Dollar Bar? Well, she immediately went down on my
Tootsie Roll and you know, it was like pure Almond Joy.”52 The Commission
determined that the material was indecent even though it used candy bar names to
substitute for sexual activities. In one notice concerning the broadcast of the song,
the Commission stated that “[w]hile the passages arguably consist of double entendre
and indirect references, the language used in each passage was understandable and
clearly capable of specific sexual meaning and, because of the context, the sexual
48 Id.
49 Id. at 5.
50 Notice of Apparent Liability, State University of New York, 8 F.C.C. Rcd. 456 (1993).
51 Id.
52 Notice of Apparent Liability, KGB Incorporated, 7 F.C.C. Rcd. 3207 (1992). See also
Great American Television and Radio Company, Inc., 6 F.C.C. Rcd. 3692 (1990); WIOD,
Inc., 6 F.C.C. Rcd. 3704 (1989).

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import was inescapable.”53 The nature of the lyrics, coupled with the fact that the
song aired between 6 a.m. and 10 a.m., gave rise to the imposition of a forfeiture.
Dwelling or Repetition of Potentially Offensive Material. Repetition
of and persistent focus on a sexual or excretory activity could “exacerbate the
potential offensiveness of broadcasts.” For example, the FCC issued a notice of
apparent liability and imposed a forfeiture on a radio station that broadcast an
extensive discussion of flatulence and defecation by radio personality “Bubba, the
Love Sponge.”54 Though the broadcast did not contain any expletives, the
Commission found that the material dwelt on excretory activities and therefore was
patently offensive.
While repetition can increase the likelihood that references to sexual or
excretory activities are deemed indecent, where such references have been made in
passing or are fleeting in nature, the Commission has found that the reference was not
indecent even when profanity has been used.55 For example, the Commission
determined that the following phrase — “The hell I did, I drove mother-f[***]er, oh.”
— uttered by an announcer during a radio morning show, was not indecent.56 The
Commission declined to take action regarding the broadcast because it contained only
a “fleeting and isolated utterance . . . within the context of live and spontaneous
programming.”57 Certain fleeting references may, however, be found indecent where
other factors contribute to the broadcast’s patent offensiveness. For example, the
Commission has imposed forfeitures on stations for airing jokes that refer to sexual
activities with children.58
Pandering or Titillating Nature of Material. In determining whether
broadcast material is indecent, the Commission also looks to the purpose for which
the material is being presented. Indecency findings generally involve material that
is presented in a pandering or titillating nature, or material that is presented for the
shock value of its language. For example, the Commission deemed a radio call-in
survey about oral sex to be indecent based in part on the fact that the material was
presented in a pandering and titillating manner.59
53 6 F.C.C. Rcd. 3692.
54 Notice of Apparent Liability, Citicasters Co., 13 F.C.C. Rcd. 22004 (1998).
55 The Commission has recently indicated that “the mere fact that specific words or phrases
are not sustained or repeated does not mandate a finding that material that is otherwise
patently offensive to the broadcast medium is not indecent.” In the Matter of Complaints
Against Various Broadcast Licensees Regarding the Airing of the “Golden Globe Awards”
Program, File No. EB-03-IH-0110 (March 18, 2004). See section entitled “Golden Globe
Awards Decision,” below.
56 L.M. Communications of South Carolina, Inc., 7 F.C.C. Rcd. 1595 (1992).
57 Id.
58 See Notice of Apparent Liability, Temple Radio, Inc., 12 F.C.C. Rcd. 21828 (1997); Notice
of Apparent Liability, EZ New Orleans, Inc., 12 F.C.C. Rcd. 4147 (1997).
59 Notice of Apparent Liability, Rusk Corporation, Radio Station KLOL, 5 F.C.C. Rcd. 6332
(continued...)

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Whether a broadcast is presented in a pandering or titillating manner depends
on the context in which the potentially indecent material is presented. Explicit
images or graphic language does not necessarily mean that the broadcast is being
presented in a pandering or titillating manner. For example, the Commission
declined to impose a forfeiture on a television station for airing portions of a high
school sex education class that included the use of “sex organ models to demonstrate
the use of various birth control devices.”60 In dismissing the complaint, the
Commission held that “[a]lthough the program dealt with sexual issues, the material
presented was clinical or instructional in nature and not presented in a pandering,
titillating, or vulgar manner.”61
Golden Globe Awards Decision
As noted above, on March 18, 2004, the Federal Communications Commission
overturned an earlier decision by the Commission’s Enforcement Bureau regarding
the broadcast of the word “f[***]ing” during the 2003 Golden Globe Awards. In the
earlier decision, the Enforcement Bureau had found that the broadcast of the program
including the utterance did not violate federal restrictions regarding the broadcast of
obscene and indecent material.62 The Bureau dismissed the complaints primarily
because the language in question did not describe or depict sexual or excretory
activities or organs.
In its March 18 Memorandum Opinion and Order, the full Commission
concluded that the broadcast of the Golden Globe Awards did include material that
violated prohibitions on the broadcast of indecent and profane material.63 In
reversing the Bureau, the Commission determined that the “phrase at issue is within
the scope of our indecency definition because it does depict or describe sexual
activities.”64 Although the Commission “recognize[d] NBC’s argument that the ‘F-
Word’ here was used ‘as an intensifier,’” it nevertheless concluded that, “given the
core meaning of the ‘F-Word,’ any use of that word or a variation, in any context,
59 (...continued)
(1990).
60 In the Matter of Application for Review of the Dismissal of an Indecency Complaint
Against King Broadcasting Co., 5 F.C.C. Rcd. 2971 (1990).
61 Id.
62 Id.
63 The Commission declined to impose a forfeiture on the broadcast licensees named in the
complaint because they were not “on notice” regarding the new interpretations of the
Commission’s regulations regarding broadcast indecency and the newly adopted definition
of profanity. The Commission also indicated that it will not use its decision in this case
adversely against the licensees during the license renewal process.
64 In the Matter of Complaints Against Various Broadcast Licensees Regarding Their Airing
of the “Golden Globe Awards” Program, File No. EB-03-IH-0110 at 4 (March 18, 2004).

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CRS-11
inherently has a sexual connotation, and therefore falls within the first prong of our
indecency definition.”65
Upon finding that the phrase in question fell within the first prong of the
definition of “indecency,” the Commission turned to the question of whether the
broadcast was patently offensive under contemporary community standards for the
broadcast medium. The Commission determined that the broadcast was patently
offensive, noting that “[t]he ‘F-Word’ is one of the most vulgar, graphic and explicit
descriptions of sexual activity in the English language,” and that “[t]he use of the ‘F-
Word’ here, on a nationally telecast awards ceremony, was shocking and
gratuitous.”66 The Commission also rejected “prior Commission and staff action
[that] have indicated that isolated or fleeting broadcasts of the ‘F-Word’ such as that
here are not indecent or would not be acted upon,” concluding “that any such
interpretation is no longer good law.”67 The Commission further clarified its
position, stating “that the mere fact that specific words or phrases are not sustained
or repeated does not mandate a finding that material that is otherwise patently
offensive to the broadcast medium is not indecent.”68
In addition to the determination that the utterance of the word “f[***]ing”
during the Golden Globe Awards was indecent, the Commission also found, as an
independent ground for its decision, that use of the word was “profane” in violation
of 18 U.S.C. 1464.69 In making this determination, the Commission cited dictionary
definitions of “profanity” as “‘vulgar, irreverent, or coarse language,’”70 and a
Seventh Circuit opinion stating that “profanity” is “‘construable as denoting certain
of those personally reviling epithets naturally tending to provoke violent resentment
or denoting language so grossly offensive to members of the public who actually hear
it as to amount to a nuisance.’”71 The Commission acknowledged that its limited
case law regarding profane speech has focused on profanity in the context of
blasphemy, but stated that it would no longer limit its definition of profane speech
in such manner. Pursuant to its adoption of this new definition of “profane,” the
65 Id.
66 Id. at 5.
67 Id. at 6. See section entitled “Dwelling or Repetition of Potentially Indecent Material,”
above.
68 Id.
69 Id. at 7. It should be noted that, although in this case the Commission found that the
broadcast in question was both indecent and profane, there are certain to be words that could
be deemed “profane,” but do not fit the Commission’s definition of “indecent.” Under the
newly adopted definition of “profanity,” many words could arguably be found “profane”
because they provoke “violent resentment” or are otherwise “grossly offensive,” but not be
found “indecent” because they do not refer to any sexual or excretory activity or organ or
even “inherently” have a sexual connotation, as the Commission found the phrase that Bono
uttered to have. Presumably, it is these words that the Commission will consider on a case-
by-case basis.
70 Id. at 7, citing Black’s Law Dictionary 1210 (6th ed. 1990) and American Heritage College
Dictionary 1112 (4th ed. 2002).
71 Id., citing Tallman v. United States, 465 F.2d 282, 286 (7th Cir. 1972).

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Commission stated that, depending on the context, the “‘F-Word’ and those words
(or variants thereof) that are as highly offensive as the ‘F-Word’” would be
considered “profane” if broadcast between 6 a.m. and 10 p.m.72 The Commission
noted that other words would be considered on a case-by-case basis.
Super Bowl Halftime Show Decision
As noted above, on September 22, 2004, the FCC released a Notice of Apparent
Liability for Forfeiture imposing a $550,000 forfeiture on several Viacom-owned
CBS affiliates for the broadcast of the Super Bowl XXXVIII halftime show on
February 1, 2004, in which a performer’s breast was exposed.73 The Commission
determined that the show, which was aired at approximately 8:30 p.m. Eastern
Standard Time, violated its restrictions on the broadcast of indecent material.

In its analysis, the Commission determined that since the broadcast included a
performance that culminated in “on-camera partial nudity,” and thus satisfied the first
part of the indecency analysis, further scrutiny was warranted to determine whether
the broadcast was “patently offensive as measured by contemporary community
standards for the broadcast medium.”74 The Commission found that the performance
in question was “both explicit and graphic,” and rejected the licensees’ contention
that since the exposure was fleeting, lasting only 19/32 of a second, it should not be
deemed indecent.75 In determining whether the material in question was intended to
“pander to, titillate and shock the viewing audience,” the Commission noted that the
performer’s breast was exposed after another performer sang, “gonna have you naked
by the end of this song.”76 The Commission found that the song lyrics, coupled with
simulated sexual activities during the performance and the exposure of the breast,
indicated that the purpose of the performance was to pander to, titillate and shock the
audience, and the fact that the actual exposure of the breast was brief, as noted above,
was not dispositive.77
The Commission ordered each Viacom-owned CBS affiliate to pay the statutory
maximum forfeiture of $27,500 for the broadcast, for a total forfeiture of $550,000.
The forfeiture was imposed on the Viacom-owned affiliates because of Viacom’s
participation in and planning of the Super Bowl halftime show with MTV networks,
another Viacom subsidiary.78
72 Id.
73 Complaints Against Various Television Licensees Concerning Their February 1, 2004,
Broadcast of the Super Bowl XXXVIII Halftime Show, File No. EB-04-IH-0011 (September
22, 2004). [http://www.fcc.gov/eb/Orders/2004/FCC-04-209A1.html]
74 Id. at ¶ 11.
75 Id. at ¶ 13.
76 Id. at ¶ 14.
77 Id.
78 Id. at ¶¶ 17 - 24.

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Following the issuance of the Notice of Apparent Liability for Forfeiture, the
affiliates are “afforded a reasonable period of time (usually 30 days from the date of
the notice) to show, in writing, why a forfeiture penalty should not be imposed or
should be reduced, or to pay the forfeiture.”79 CBS filed an opposition to the Notice
of Apparent Liability on November 5, 2004. The opposition challenged the forfeiture
on various grounds, including that the test for indecency was not met and that the
forfeiture violates the First Amendment.
On March 15, 2006, the FCC issued a Forfeiture Order imposing a mandatory
forfeiture in the amount of $550,000 on CBS for the airing of the 2004 Super Bowl
halftime show.80 This order, constituting a final agency action, may be appealed in
federal court.81
Other Recent Enforcement Actions
In addition to the Order regarding the 2004 Super Bowl halftime show, the FCC
issued several Notices of Apparent Liability for various television broadcasts
occurring between February 2, 2002, and March 8, 2005.82
Of the six programs for which a forfeiture was proposed, two of the complaints
were based on the use of “indecent” language, two were based on sexually explicit
images, and two programs were cited for both language and sexual innuendo.83 In
determining whether a forfeiture was appropriate, the Commission applied the
modified analysis first used in the Golden Globe Awards Order with respect to
language that is deemed “indecent,” and in the Super Bowl Halftime Show Order
regarding sexually explicit imagery.84
In addition to the Commission’s recent actions with respect to televised
programming, the Commission had previously imposed forfeitures on a number of
radio stations for broadcast indecency.85 We now discuss two of its more recent
79 47 C.F.R. § 1.80(f)(3).
80 In the Matter of Complaints Against Various Television Licensees Concerning Their
February 1, 2004, Broadcast of the Super Bowl XXXVIII Halftime Show, File No. EB-04-IH-
0011, FCC 06-19 (March 15, 2006).
81 Procedures for appealing Commission orders are set forth in 47 U.S.C. § 402.
82 In the Matter of Complaints Regarding Various Television Broadcasts Between February
2, 2002 and March 8, 2005, FCC 06-17, (March 15, 2006).
83 Id. Also, three of the programs for which forfeitures were proposed were Spanish-
language programs.
84 The Commission found violations, but declined to impose forfeitures with respect to
several programs that were aired prior to the Golden Globe Awards Order, at a time when
the Commission would not have taken enforcement actions against the isolated use of
expletives. Id. at ¶¶ 100 - 137.
85 For a complete list of recent actions related to broadcast indecency, see
[http://www.fcc.gov/eb/broadcast/obscind.html].

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CRS-14
high-profile actions related to radio programming. Each of these actions resulted in
a consent decree between the Commission and the broadcaster.
Infinity Broadcasting. On October 2, 2003, the Commission issued a Notice
of Apparent Liability to Infinity Broadcasting for airing portions of the “Opie &
Anthony Show” during which the hosts conducted a contest entitled “Sex for Sam”
which involved couples having sex in certain “risky” locations throughout New York
City in an effort to win a trip.86 The couples, accompanied by a station employee,
were to have sex in as many of the designated locations as possible. They were
assigned points based on the nature of the location and the activities in which they
engaged. The station aired discussions between the hosts of the show and the station
employee accompanying the couples which consisted of descriptions of the sexual
activities of the participating couples and the locations in which they engaged in
sexual activities. One discussion involved an description of a couple apparently
engaging in sexual activities in St. Patrick’s Cathedral.
The Commission determined that the broadcast made “graphic and explicit
references to sexual and excretory organs and activity” despite the fact that colloquial
terms, rather than explicit or graphic terms, were used in the descriptions. The
Commission found that “[t]o the extent that the colloquial terms that the participants
used to describe organs and activities could be described as innuendo rather than as
direct references, they are nonetheless sufficient to render the material actionably
indecent because the ‘sexual [and] excretory import’ of those references was
‘unmistakable.’”87 The Commission also found that the hosts of the show “dwelled
at length on and referred repeatedly to sexual or excretory activities and organs,” and
that “the descriptions of sexual and excretory activity and organs were not in any way
isolated and fleeting.”88
On November 23, 2004, the FCC entered into a consent decree with Infinity
regarding the Opie & Anthony NAL.89 Pursuant to the decree, Infinity, a subsidiary
of Viacom, agreed to make a voluntary contribution to the United States Treasury in
the amount of $3.5 million and to adopt a company-wide compliance plan for the
purpose of preventing the broadcast of indecent material. As part of the company-
wide plan, Viacom agreed to install delay systems to edit “potentially problematic”
live programming and to conduct training with respect to indecency regulations for
all of its on-air talent and employees who participate in programming decisions.
86 In the Matter of Infinity Broadcasting, et al., EB-02-IH-0685 (October 2, 2003).
87 Id. at 8.
88 Id. at 9. The Commission noted that the contest portion of the broadcast in question lasted
over an hour and was reproduced in a 203-page transcript.
89 See In the Matter of Viacom Inc., Infinity Radio Inc., et. al., FCC 04-268 (November 23,
2004). [http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-04-268A1.pdf]. The decree
also covers several other actions pending against Viacom-owned Infinity Radio stations and
broadcast television stations, but does not cover the proceedings related to the Super Bowl
halftime show discussed supra.

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Clear Channel Broadcasting. On January 27, 2004, the Commission
issued a Notice of Apparent Liability to Clear Channel Broadcasting for repeated
airings of the “Bubba, the Love Sponge” program which included indecent material.90
The Commission found that all the broadcasts in question involved “conversations
about such things as oral sex, penises, testicles, masturbation, intercourse, orgasms
and breasts.”91 The Commission determined that each of the broadcasts in question
contained “sufficiently graphic and explicit references,” which were generally
repeated throughout the broadcast in a pandering and titillating manner.
In one broadcast, the station aired a segment involving skits in which the voices
of purported cartoon characters talk about drugs and sex.92 The skits were inserted
between advertisements for Cartoon Network’s Friday-night cartoons. The
Commission determined that “the use of cartoon characters in such a sexually explicit
manner during hours of the day when children are likely to be listening is shocking
and makes this segment patently offensive.”93 The Commission also cited the
“calculated and callous nature of the stations’ decision to impose this predictably
offensive material upon young, vulnerable listeners” as “weighing heavily” in its
determination.94
On April 8, 2004, the Commission released another Notice of Apparent Liability
against Clear Channel Communications for airing allegedly indecent material during
the “Howard Stern Show.”95 For the first time, the Commission sought to impose
separate statutory maximum forfeitures for each indecent utterance during the
program in question, rather than imposing a single fine for the entire program.96
The Commission entered into a consent decree with Clear Channel on June 9,
2004. The decree requires Clear Channel to make a “voluntary contribution” of
$1.75 million to the United States Treasury and outlines “a company-wide
compliance plan for the purpose of preventing the broadcast over radio or television
of material violative of the indecency laws.”97 As part of the compliance plan, Clear
Channel will “conduct training on obscenity and indecency for all on-air talent and
employees who materially participate in programming decisions, which will include
90 In the Matter of Clear Channel Broadcasting Licenses, Inc., et al., File No. EB-02-IH-
0261 (January 27, 2004).
91 Id. at 4.
92 Id. at 5.
93 Id. at 6.
94 Id.
95 In the Matter of Clear Channel Broadcasting Licensees, File No. EB-03-IH — 159 (April
8, 2004).
96 See Statement of Commissioner Michael J. Copps, [http://hraunfoss.fcc.gov/
edocs_public/attachmatch/DOC-245911A1.pdf], p. 2.
97 See In the Matter of Clear Channel Communications, Inc., FCC 04-128 (June 9, 2004) at
[http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-04-128A1.pdf].

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tutorials regarding material that the FCC does not permit broadcasters to air.”98 The
plan also requires Clear Chanel to suspend any employee accused of airing, or who
materially participates in the decision to air, obscene or indecent material while an
investigation is conducted following the issuance of a Notice of Apparent Liability.
Such employees will be terminated without delay if the NAL results in enforcement
action by the FCC.
Congressional Response
108th Congress.
Several bills addressing broadcast indecency were introduced during the 108th
Congress, but none were enacted.
In response to the FCC’s initial decision regarding the Golden Globe Awards
broadcast, Representative Ose introduced legislation that would have amended
section 1464 of title 18 to define “profane,” as used in that section, to include any use
of eight specific words or phrases, in any grammatical form.99
Legislation was also introduced, by Representative Upton, that would have
increased the FCC’s penalties for broadcasting obscene, indecent, and profane
language. H.R. 3717, 108th Congress, would have increased the penalties to
$275,000 for each violation or each day of a continuing violation, with the total
amount assessed for any continuing violation not to exceed $3 million for any single
act or failure to act. The bill specifically mentioned obscene, indecent, and profane
language, but did not appear to impose the increased penalties for broadcast images
that were deemed indecent.
On March 3, 2004, the House Committee on Energy and Commerce held a full-
committee markup of H.R. 3717. The Committee approved an amendment in the
nature of a substitute and ordered the bill to be reported to the full House.100 The
amendment would have increased the maximum penalty for the broadcast of indecent
material to $500,000 for each violation with no aggregate maximum. Under the
amendment, the increased forfeiture penalties could have also been imposed on
nonlicensees, such as individuals who utter obscene, indecent, or profane material.
In determining the appropriate amount of the forfeiture, the bill directed the
Commission to consider a number of factors, including whether the material in
question was live or recorded, scripted or unscripted, and the size of the viewing
98 Id. at 7.
99 H.R. 3687. The FCC’s indecency regulation prescribes the 10 p.m.-to-6 a.m. “safe
harbor” for “indecent programming.” No comparable regulation addresses profane
programming. One might argue, therefore, that the ban on profane programming under 18
U.S.C. § 1464, as it exists now and as it would be amended by H.R. 3687, would apply
around the clock. This reading of the statute, however, might render it unconstitutional (see
note 27, supra), and a court might reject it for that reason. See, United States v. X-Citement
Video, Inc., 513 U.S. 64, 69 (1994) (“a statute is to be construed where fairly possible so
as to avoid substantial constitutional questions”).
100 H.Rept. 108-434.

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CRS-17
audience. The Commission would have been required to act on allegations of
broadcast indecency within 180 days after the receipt of the allegation.
In addition to the increased penalties, the legislation also would have provided
additional nonmonetary penalties for the broadcast of indecent material. If the
Commission determined that a licensee had broadcast obscene, indecent, or profane
material, the Commission would have been able to require the licensee to broadcast
public service announcements that serve the educational and informational needs of
children, and such announcements could have been required to reach an audience that
was up to five times the size of the audience that was estimated to have been reached
by the obscene, indecent, or profane material. The legislation also directed the
Commission to take into consideration whether the broadcast of obscene, indecent,
or profane material demonstrated a lack of character or other qualifications to operate
a station. The broadcast of such material would have also been considered a serious
violation for purposes of license renewal determinations. Finally, if during the term
of the license, a broadcast licensee was the subject of three or more proceedings
regarding violations of indecency prohibitions, the Commission would have been
required to commence a proceeding to consider whether the license should be
revoked.
The House passed H.R. 3717 on March 11, 2004, with two additional
amendments.101 The first amendment would have preserved a licensee’s right to
appeal a forfeiture before it could have been considered during a license application
or renewal proceeding, or used in a license revocation proceeding initiated after the
licensee’s third indecency violation. The second amendment approved by the House
would have required the GAO to study the number of indecency complaints received
by the FCC and the number of those complaints that result in final agency action by
the Commission; the amount of time taken by the Commission to respond to a
complaint; the mechanisms established by the Commission to receive, investigate,
and respond to complaints; and whether complainants to the Commission are
adequately informed by the Commission of the responses to their complaints. The
amendment gave GAO one year to complete the study and report to Congress on its
findings.
On February 9, 2004, Senator Brownback introduced S. 2056, which was
virtually identical to H.R. 3717, as introduced. On March 9, 2004, the Senate
Committee on Commerce, Science and Transportation held a full committee markup
of the bill, and ordered the bill to be reported favorably with amendments.102 As
reported, the bill included a number of provisions similar to those in H.R. 3717.
Both bills would have increased forfeiture amounts for broadcast indecency, but
unlike the House bill, which included an initial increase to $500,000 per violation,
the Senate bill would have provided for an initial increase to $275,000 per violation,
with additional increases, up to $500,000, for subsequent violations. Penalties could
have been doubled if the Commission determined that certain aggravating factors
were met. Like the House bill, the Senate bill included a provision that would have
required the FCC to commence a license revocation hearing if a broadcast licensee
101 Roll Call No. 55, 150 Cong. Rec. H1035 (daily ed. March 11, 2004).
102 S.Rept. 108-253.

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CRS-18
had been the subject of three proceedings regarding indecency violations. The Senate
bill would have also required the Commission to act on any allegations of broadcast
indecency within 270 days.
Additional amendments to S. 2056 would have directed the Commission to
consider a broadcaster’s ability to pay forfeitures based on factors such as revenues
and market size when determining the amount of the forfeiture, and would have
invalidated the FCC’s media ownership rules pending a GAO review of the
relationship between horizontal and vertical consolidation of media companies and
violations of indecency prohibitions.103
Another Senate bill aimed at increasing penalties for broadcast indecency was
introduced by Senator Miller on March 1, 2004. S. 2147 would have allowed the
Commission to impose a forfeiture of “25 cents times the number of individuals who
witnessed or heard the broadcast as determined by a viewership rating service
selected by the Commission” for the broadcast of obscene, indecent, or profane
language. The forfeiture could have been imposed on broadcast licensees, any
applicant for a broadcast license, or any other company or individual that had
participated in the broadcast, including producers, general managers, performers, and
networks.
On June 22, 2004, the Senate approved an amendment to the National Defense
Authorization Act (S. 2400) which included provisions similar to those in S. 2056,
as reported by the Senate Commerce, Science, and Transportation Committee on
March 9, 2004. The amendment would have increased the maximum forfeiture
imposed by the FCC to $275,000 per violation, with a cap of $3 million for a
continuing violation.104 The Senate’s amendment to the National Defense
Authorization Act was not adopted by the conference committee and was not
included in the conference report as approved by both the House and Senate on
October 9, 2004.105
In addition, S. 1264, 108th Congress, the FCC Reauthorization Act of 2003, as
reported by the Committee on Commerce on September 3, 2003 (prior to the FCC
Enforcement Bureau’s decision regarding the Golden Globe Awards broadcast),
would have, in section 11, required that “the broadcast of obscene or indecent matter
from more than 1 individual during the same program” be considered separate
violations, and that the FCC, unless it determined it not to be in the public interest,
revoke the station license or construction permit of any broadcast station licensee or
permittee that violates 18 U.S.C. § 1464.
None of the above indecency provisions was enacted into law.
103 The Senate committee also added a new title to the original bill, entitled the “Children’s
Protection from Violent Programming Act.”
104 S.Amdt. 3235, as amended.
105 See conference report for H.R. 4200, H.Rept. 108-767.

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Finally, several resolutions were introduced to express disapproval of the FCC
Enforcement Bureau’s decision regarding the Golden Globe Awards broadcast:
H.Res. 482, H.Res. 500, and S.Res. 283, which the Senate passed on December 9,
2003. None of the House resolutions were acted upon.
109th Congress.
Legislation addressing broadcast indecency has been introduced during the 109th
Congress. In general, these bills are similar to legislation introduced during the 108th
Congress.
H.R. 310, 109th Congress, entitled the Broadcast Decency Enforcement Act of
2005, would increase penalties for the broadcast of obscene, indecent, or profane
material to a maximum of $500,000 for each violation, and would provide penalties
for nonlicensees, such as artists and performers.106 In addition to the increased
forfeiture amount, the Federal Communications Commission would be able to
require licensees to broadcast public service announcements that serve the
educational and informational needs of children and require such announcements to
reach an audience up to five times greater than the size of the audience that is
estimated to have been reached by the obscene, indecent or profane broadcast. Also,
any violation of the Commission’s indecency regulations could be considered when
determining whether to grant or renew a broadcast license, and three or more
indecency violations would trigger a license revocation proceeding. The legislation
would also require the Commission to act upon allegations of indecency within 180
days of the receipt of the allegation.
On February 9, 2005, the House Committee on Energy and Commerce reported
H.R. 310 favorably without amendment. The House passed H.R. 310 on February
16, with one amendment. The amendment made several nonsubstantive technical
changes and added a section requiring the FCC to revise its policy statement
regarding broadcast indecency within nine months of the date of enactment of the
legislation and at least once every three years thereafter.107
H.R. 1420, 109th Congress, entitled the Families for ED Advertising Decency
Act, would require the Federal Communications Commission to revise its
interpretations of, and enforcement policies concerning the broadcast of indecent
material to treat as indecent any advertisement for a medication for the treatment of
erectile dysfunction, thus prohibiting the airing of such advertisements between the
hours of 6 a.m. and 10 p.m.
H.R. 1440, 109th Congress, entitled the Stamp Out Censorship Act of 2005,
would prohibit the Federal Communications Commission from imposing forfeitures
for indecency on nonbroadcast programming.
106 This bill appears to be substantially similar to H.R. 3717, as reported by the House
Committee on Energy and Commerce, on March 3, 2004.
107 H.Amdt. 10. The FCC’s policy statement on broadcast indecency was released on April
6, 2001, and can be found here [http://www.fcc.gov/eb/Orders/2001/fcc01090.html].

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S. 193, 109th Congress, also entitled the Broadcast Decency Enforcement Act
of 2005, was signed into law by the President on June 15, 2006, and became P.L.
109-235. It increases the maximum forfeiture for the broadcast of obscene, indecent,
or profane material to $325,000 for each violation, with a cap of $3,000,000 for any
single act or failure to act.108
S. 616, 109th Congress, entitled the Indecent and Gratuitous and Excessively
Violent Programming Control Act of 2005, would, inter alia, require the Federal
Communications Commission to study the effectiveness of measures used by
multichannel video programming distributors to protect children from exposure to
indecent and violent programming. If the Commission were to determine that such
measures were not effective, the legislation directs the Commission to initiate a
rulemaking proceeding to adopt measures to protect children from indecent
programming carried by multichannel video programming distributors during the
hours when children are reasonably likely to be a substantial portion of the television
audience. The bill would also increase the penalty for the broadcast of obscene,
indecent, or profane language or images to $500,000, with a maximum forfeiture for
any violations occurring in a given 24-hour period set at $3,000,000. The
Commission would be required to take certain factors into consideration when
imposing a forfeiture, and would be required to conduct public hearings or forums
prior to the imposition of a forfeiture. Additionally, broadcast licensees would be
allowed to preempt programming from a network organization that it deems obscene,
and all television and radio broadcast licensees and multichannel video programming
distributors would be required to provide a warning of the specific content of each
recorded or scripted program it broadcasts.
108 See additional discussion on page 7, above.

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Would Prohibiting the Broadcast of “Indecent” Words
Regardless of Context Violate the First Amendment?
In 1978, in Federal Communications Commission v. Pacifica Foundation, the
Supreme Court upheld, against a First Amendment challenge, an action that the FCC
took against a radio station for broadcasting a recording of George Carlin’s “Filthy
Words” monologue at 2 p.m.109 The Court has not decided a case on the issue of
“indecent” speech on broadcast radio or television since then, but it did cite Pacifica
with approval in 1997, when, in Reno v. ACLU, it contrasted regulation of the
broadcast media with regulation of the Internet.110 Nevertheless, the Court in Reno
did not hold that Pacifica remains good law, and arguments have been made that the
proliferation of cable television channels has rendered archaic Pacifica’s denial of
full First Amendment rights to broadcast media.
Even if Pacifica remains valid in this respect, Pacifica did not hold that the First
Amendment permits the ban either of an occasional expletive on broadcast media,
or of programs that would not be likely to attract youthful audiences, even if such
programs contain “indecent” language. On these points, Justice Stevens wrote for
the Court in Pacifica:
It is appropriate, in conclusion, to emphasize the narrowness of our holding.
This case does not involve a two-way radio conversation between a cab driver
and a dispatcher, or a telecast of an Elizabethan comedy. We have not decided
that an occasional expletive in either setting would justify any sanction. . . . The
time of day was emphasized by the Commission. The content of the program in
which the language is used will also affect the composition of the audience. . . .111
In a footnote to the last sentence of this quotation, the Court added: “Even a
prime-time recitation of Geoffrey Chaucer’s Miller’s Tale would not be likely to
109 438 U.S. 726 (1978). The FCC’s action was to issue “a declaratory order granting the
complaint,” and “state that the order would be ‘associated with the station’s license file,’”
which means that the FCC could consider it when it came time for the station’s license
renewal. Id. at 730.
110 521 U.S. 844, 868 (1997) (noting that “the history of the extensive regulation of the
broadcast medium” and “the scarcity of available frequencies” are factors “not present in
cyberspace,” and striking down parts of the Communications Decency Act of 1996). The
Court also cited Pacifica with approval in United States v. Playboy Entertainment Group,
Inc., 529 U.S. 803, 813-814 (2000), and in Ashcroft v. Free Speech Coalition, 535 U.S. 234,
245 (2002).
111 Pacifica, supra, 438 U.S. at 750. A federal court of appeals subsequently held
unconstitutional a federal statute that banned “indecent” broadcasts 24 hours a day, but, in
a later case, the same court upheld the present statute, 47 U.S.C. § 303 note, which bans
“indecent” broadcasts from 6 a.m. to 10 p.m. Action for Children’s Television v. FCC, 932
F.2d 1504 (D.C. Cir. 1991), cert. denied, 503 U.S. 913 (1992); Action for Children’s
Television v. FCC, 58 F.3d 654 (D.C. Cir. 1995) (en banc), cert. denied, 516 U.S. 1043
(1996).

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command the attention of many children. . . .”112 At the same time, Justice Stevens
acknowledged that the Carlin monologue has political content: “The monologue does
present a point of view; it attempts to show that the words it uses are ‘harmless’ and
that our attitudes toward them are ‘essentially silly.’ The Commission objects,
[however,] not to this point of view, but to the way in which it is expressed.”113 The
Court commented: “If there were any reason to believe that the Commission’s
characterization of the Carlin monologue as offensive could be traced to its political
content — or even to the fact that it satirized contemporary attitudes about four-letter
words — First Amendment protection might be required.”114
There appears to be some tension between this comment and the Court’s remark
about Chaucer, as any attempt to censor Chaucer would presumably also be based not
on its ideas but on the way its ideas are expressed. But, as noted above, the Court’s
remark about Chaucer was a footnote to its comment that “[t]he content of the
program in which the language is used will also affect the composition of the
audience. . . .” Therefore, the difference that Justice Stevens apparently perceived
between Chaucer and Carlin was that, even if both have literary, artistic, or political
value, only the latter would be likely to attract a youthful audience. Arguably, then,
Pacifica would permit the censorship, during certain hours, of the broadcast even of
works of art that are likely to attract a youthful audience.115
If so, this would be contrary to the Court’s opposition, in other contexts, to the
censorship of works of art. The Court has held that even “materials [that] depict or
describe patently offensive ‘hard core’ sexual conduct,” which would otherwise be
obscene, may not be prohibited if they have “serious literary, artistic, political, or
scientific value.”116 In addition, the “harmful to minors” statutes of the sort that the
112 Id. at 750, n.29.
113 Id. at 746 n.22. These two sentences and the text accompanying the next footnote,
although part of Justice Stevens’ opinion, are in a part of the opinion (IV-B) joined by only
two other justices. Every other quotation from Pacifica in this report was from a part of the
opinion that a majority of the justices joined.
114 Id. at 746.
115 There also appears to be some tension between, on the one hand, Justice Stevens’
distinction in Pacifica between a point of view and the way in which it is expressed, and,
on the other hand, the Court’s statement in Cohen v. California “that much linguistic
expression serves a dual communicative function: it conveys not only ideas capable of
relatively precise, detached explication, but otherwise inexpressible emotions as well. In
fact, words are often chosen as much for their emotive as their cognitive force. We cannot
sanction the view that the Constitution, while solicitous of the cognitive content of
individual speech, has little or no regard for that emotive function which, practically
speaking, may often be the more important element of the overall message sought to be
communicated.” 403 U.S. 15, 26 (1971) (upholding the First Amendment right, in the
corridor of a courthouse, to wear a jacket bearing the words “F[***] the Draft”). Arguably,
Carlin’s use of “indecent” words not only served an emotive purpose, but served to indicate
the precise words to whose censorship he was objecting. Yet Pacifica was decided after
Cohen, which suggests that Cohen does not lessen the precedential value of Pacifica.
116 Miller v. California, 413 U.S. 15, 27, 24 (1973). In addition, in striking down parts of
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Supreme Court upheld in Ginsberg v. New York generally define “harmful to minors”
to parallel the Supreme Court’s definition of “obscenity,” and thus prohibit
distributing to minors only material that lacks serious value for minors.117 This
suggests that, if the FCC or Congress prohibited the broadcast during certain hours
of “indecent” words regardless of context, the Court might be troubled by the
prohibition’s application to works with serious value, even though Pacifica allowed
the censorship of Carlin’s monologue, despite its apparently having serious value.
Yet, as noted, Justice Stevens’ expressed a distinction in Pacifica between a
point of view and the way in which it is expressed, and, though a majority of the
justices did not join the part of the opinion that drew this distinction, a majority of
the justices, by concurring in Pacifica’s holding, indicated that the political (or
literary or artistic) content of Carlin’s monologue did not prevent its censorship
during certain hours on broadcast radio and television. Therefore, it appears that, in
deciding the constitutionality of an FCC or a congressional action prohibiting the
broadcasting, during certain hours, of material with “indecent” words, the Court
might be troubled by its application to works with serious value only if those works
would, like Chaucer’s, not likely attract a substantial youthful audience.
In sum, the Court did not hold that the FCC could prohibit an occasional
expletive, and did not hold that the FCC could prohibit offensive words in programs
— even prime-time programs — that children would be unlikely to watch or listen
to. The Court did not hold that the FCC could not take these actions, as the question
whether it could was not before the Court. But the Court’s language quoted above
renders Pacifica of uncertain precedential value in deciding whether a ban, during
certain hours, on the broadcast of “indecent” words regardless of context would be
constitutional.
In the “Filthy Words” monologue, as the Supreme Court described it, George
Carlin “began by referring to his thoughts about ‘the words you couldn’t say on the
public, ah, airwaves, um, the ones you definitely wouldn’t say, ever.’ He proceeded
to list those words and repeat them over and over in a variety of colloquialisms.” The
FCC, at the time, used essentially the same standard for “indecent” that it uses today:
“[T]he concept of ‘indecent’ is intimately connected with the exposure of children
to language that describes, in terms patently offensive as measured by contemporary
116 (...continued)
the Communications Decency Act of 1996, the Court expressed concern that the statute may
“extend to discussions about prison rape or safe sexual practices, artistic images that include
nude subjects, and arguably the card catalogue of the Carnegie Library.” Reno v. ACLU,
supra, 521 U.S. at 878. And, in striking down a federal statute that prohibited child
pornography that was produced without the use of an actual child, the Court expressed
concern that the statute “prohibits speech despite its serious literary, artistic, political, or
scientific value.” Ashcroft v. Free Speech Coalition, 535 U.S. 234, 246 (2002). In neither
of these cases, however, did the Court state that its holding turned on the statute’s
application to works of serious value.
117 390 U.S. 629 (1968).

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community standards for the broadcast medium, sexual or excretory activities and
organs. . . .”118
Most of Carlin’s uses of the “filthy words,” it appears from reading his
monologue, which is included as an appendix to the Court’s opinion, seem designed
to show the words’ multiple uses, apart from describing sexual or excretory activities
or organs. Nevertheless, “the Commission concluded that certain words depicted
sexual or excretory activities in a patently offensive manner. . . .”119 Therefore, one
might argue that, even if, under Pacifica, the First Amendment does not protect,
during certain hours, the use on broadcast media of words that depict sexual or
excretory activities in a patently offensive manner, it nevertheless might protect the
use of those same words “as an adjective or expletive to emphasize an exclamation”
(to quote the FCC Enforcement Bureau’s opinion in the Bono case).
A counterargument might be that, in Pacifica, the Court noted that “the normal
definition of ‘indecent’ merely refers to nonconformance with accepted standards of
morality.”120 This suggests the possibility that the Court would have ruled the same
way in Pacifica if the FCC had defined “indecent” loosely enough to include the use
of a patently offensive word “as an adjective or expletive to emphasize an
exclamation.” But this is speculative, as the Court did not so rule. Further, as noted
above, Court emphasized the narrowness of its holding, noting that it had “not
decided that an occasional expletive . . . would justify any sanction. . . .”
On what basis did the Court in Pacifica find that the FCC’s action did not
violate the First Amendment? In Part IV-C of opinion, which was joined by a
majority of the justices, Justice Stevens wrote:
[O]f all forms of communication, it is broadcasting that has received the most
limited First Amendment protection. Thus, although other speakers cannot be
licensed except under laws that carefully define and narrow official discretion,
a broadcaster may be deprived of his license and his forum if the Commission
decides that such an action would serve “the public interest, convenience, and
necessity.” Similarly, although the First Amendment protects newspaper
publishers from being required to print the replies of those whom they criticize,
Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, it affords no such
protection to broadcasters; on the contrary, they must give free time to the
victims of their criticism. Red Lion Broadcasting Co. v. FCC, 395 U.S. 367.
The reasons for these distinctions are complex, but two have relevance to the
present case. First, the broadcast media have established a uniquely pervasive
presence in the lives of all Americans. Patently offensive, indecent material
presented over the airwaves confronts the citizen, not only in public, but in the
privacy of the home, where the individual’s right to be left alone plainly
outweighs the First Amendment rights of an intruder. Rowan v. Post Office
Dept., 397 U.S. 728. . . . To say that one may avoid further offense by turning
118 Pacifica, supra, 438 U.S. at 731-732.
119 Id. at 732 (distinguishing “indecent” from “obscene” and “profane” in 18 U.S.C. § 1464).
120 Id. at 740.

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off the radio when he hears indecent language is like saying that the remedy for
an assault is to run away after the first blow.
Second, broadcasting is uniquely accessible to children, even those too young to
read. . . . Bookstores and motion picture theaters . . . may be prohibited from
making indecent material available to children. We held in Ginsberg v. New
York, 390 U.S. 629, that the government’s interest in the “well-being of its
youth” and in supporting “parents’ claim to authority in their own household”
justified the regulation of otherwise protected expression. . . .121
In sum, the Court held that, on broadcast radio and television, during certain
times of day, certain material may be prohibited because (1) it is patently offensive
and indecent, and (2) it threatens the well-being of minors and their parents’ authority
in their own household. This raises the question of the extent to which the Court
continues to allow the government (1) to treat broadcast media differently from other
media, and (2) to censor speech on the ground that it is patently offensive and
indecent, or threatens the well-being of minors and their parents’ authority in their
own household.
Broadcast Media. In Red Lion Broadcasting Co. v. FCC, which the Court
cited in the above quotation from Pacifica, the Court upheld the FCC’s “fairness
doctrine,” which “imposed on radio and television broadcasters the requirement that
discussion of public issues be presented on broadcast stations, and that each side of
those issues must be given fair coverage.”122 The reason that the Court upheld the
imposition of the fairness doctrine on broadcast media, though it would not uphold
its imposition on print media, is that “[w]here there are substantially more individuals
who want to broadcast than there are frequencies to allocate, it is idle to posit an
unabridgeable First Amendment right to broadcast comparable to the right of every
individual to speak, write, or publish.”123 “Licenses to broadcast,” the Court added,
“do not confer ownership of designated frequencies, but only the temporary privilege
of using them. 47 U.S.C. § 301. Unless renewed, they expire within three years. 47
U.S.C. § 307(d). The statute mandates the issuance of licenses if the ‘public
convenience, interest, or necessity will be served thereby.’ 47 U.S.C. § 307(a).”124
The Court in Red Lion then noted:
It is argued that even if at one time the lack of available frequencies for all who
wished to use them justified the Government’s choice of those who would best
serve the public interest . . . this condition no longer prevails so that continuing
control is not justified. To this there are several answers. Scarcity is not entirely
a thing of the past.125
121 Id. at 748-750.
122 395 U.S. 367, 369 (1969).
123 Id. at 388.
124 Id. at 394.
125 Id. at 396.

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With the plethora of cable channels today, has spectrum scarcity now become
a thing of the past? In Turner Broadcasting System, Inc. v. FCC, the Court held that
the scarcity rationale does not apply to cable television:
[C]able television does not suffer from the inherent limitations that characterize
the broadcast medium . . . [S]oon there may be no practical limitation on the
number of speakers who may use the cable medium. Nor is there any danger of
physical interference between two cable speakers attempting to use the same
channel. In light of these fundamental technological differences between
broadcast and cable transmission, application of a more relaxed standard of
scrutiny adopted in Red Lion and the other broadcast cases is inapt when
determining the First Amendment validity of cable regulation.”126
One might argue that, if the scarcity rationale does not apply to cable television,
then it should not apply to broadcast television either, because a person who because
of scarcity cannot start a broadcast channel can start a cable channel.127 But the Court
has not ruled on the question; in Turner it wrote: “Although courts and commentators
have criticized the scarcity rationale since its inception, we have declined to question
its continuing validity as support for our broadcast jurisprudence, and see no reason
to do so here.”128
In 1987, however, the FCC abolished the fairness doctrine, on First Amendment
grounds, noting that technological developments and advancements in the
telecommunications marketplace have provided a basis for the Supreme Court to
reconsider its holding in Red Lion. The FCC’s decision was upheld by the U.S.
Court of Appeals for the District of Columbia, and the Supreme Court declined to
review the case.129 The court of appeals did not rule on constitutional grounds, but
rather concluded “that the FCC’s decision that the fairness doctrine no longer served
the public interest was neither arbitrary, capricious nor an abuse of discretion, and
[we] are convinced that it would have acted on that finding to terminate the doctrine
even in the absence of its belief that the doctrine was no longer constitutional.”130
126 512 U.S. 622, 639 (1994). In Turner, the Court held that the “must carry” rules, which
“require cable television systems to devote a portion of their channels to the transmission
of local broadcast television stations,” id. at 626, were content-neutral and therefore not
subject to strict scrutiny. The Court remanded and ultimately upheld the rules. Turner
Broadcasting System, Inc., 520 U.S. 180 (1997).
127 In the court of appeals decision upholding the current statute that bans “indecent”
broadcasts from 6 a.m. to 10 p.m., a dissenting judge wrote of “the utterly irrational
distinction that Congress has created between broadcast and cable operators. No one
disputes that cable exhibits more and worse indecency than does broadcast. And cable
television is certainly pervasive in our country.” Action for Children’s Television v. FCC,
supra, 58 F.3d at 671 (emphasis in original) (Edwards, C.J., dissenting).
128 512 U.S. at 638 (citation omitted).
129 Syracuse Peace Council v. FCC, 867 F.2d 654 (D.C. Cir. 1989), cert. denied, 493 U.S.
1019 (1990).
130 Id. at 669. In Arkansas AFL-CIO v. FCC, 11 F.3d 1430 (8th Cir. 1993) (en banc), the
court of appeals held that Congress had not codified the fairness doctrine and that the FCC’s
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But, whether or not spectrum scarcity has become a thing of the past, it would
apparently would not today justify governmental restrictions on “indecent” speech.
This is because, subsequent to the Court in Turner declining to question the
applicability of the scarcity rationale to broadcast media, a plurality of justices noted,
in Denver Area Educational Telecommunications Consortium, Inc. v. FCC, that,
though spectrum scarcity continued to justify the “structural regulations at issue there
[in Turner] (the ‘must carry’ rules), it has little to do with a case that involves the
effects of television viewing on children. Those effects are the result of how parents
and children view television programming, and how pervasive and intrusive that
programming is. In that respect, cable and broadcast television differ little, if at
all.”131 The plurality therefore upheld a federal statute that permits cable operators
to prohibit indecent material on leased access channels. Thus, it appears that the
Court today would not cite spectrum scarcity to justify restrictions on “indecent”
material on broadcast media, but it might cite broadcast media’s pervasiveness and
intrusiveness.
Subsequent to Denver Area, in United States v. Playboy Entertainment Group,
Inc., the Court held that cable television has full First Amendment protection; i.e.,
content-based restrictions on cable television receive strict scrutiny.132 Thus, if, as
the Court said in Denver Area, cable and broadcast media differ little, if at all, with
respect to the regulation of “indecent” material, and, if, as the Court said in Playboy,
cable television receives strict scrutiny, then, arguably, broadcast media would also
receive strict scrutiny with regard to restrictions on “indecent” material.133 It is
130 (...continued)
decision to eliminate it was a reasonable interpretation of the statutory requirement that
licensees operate in the public interest.
131 518 U.S. 727, 748 (1996). The plurality added that cable television “is as ‘accessible to
children’ as over-the-air broadcasting, if not more so,” has also “established a uniquely
pervasive presence in the lives of all Americans,” and can also “‘confron[t] the citizen’ in
‘the privacy of the home,’ . . . with little or no prior warning.” Id. at 744-745. Justice
Souter concurred that “today’s plurality opinion rightly observes that the characteristics of
broadcast radio that rendered indecency particularly threatening in Pacifica, that is, its
intrusion into the house and accessibility to children, are also present in the case of cable
television. ...” Id. at 776.
132 529 U.S. 803, 813 (2000) (striking down a federal statute that required distributors to
fully scramble or fully block signal bleed to non-subscribers to cable channels; “signal
bleed” refers to the audio or visual portions of cable television programs that non-
subscribers to a cable channel may be able to hear or see despite the fact that the programs
have been scrambled to prevent the non-subscribers from hearing or seeing them).
133 An earlier district court case held that Pacifica does not apply to cable television because
of several differences between cable and broadcasting. For one, “[i]n the cable medium, the
physical scarcity that justifies content regulation in broadcasting is not present.” For
another, as a subscriber medium, “cable TV is not an intruder but an invitee whose
invitation can be carefully circumscribed.” Community Television v. Wilkinson, 611 F.
Supp. 1099 (D. Utah 1985), aff’d, 800 F.2d 989 (10th Cir. 1986), aff’d, 480 U.S. 926 (1987)
(striking down Utah Cable Television Programming Decency Act). The court of appeals did
not discuss the constitutional issue beyond stating that it agreed with the district court’s
reasons for its holding. 800 F.2d at 991. A summary affirmance by the Supreme Court, as
(continued...)

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possible, however, that, if cable and broadcast media differ little, then the Court
might apply Pacifica to both broadcast and cable, rather than to neither.134 In any
event, as noted above, even if the Court were to continue to apply Pacifica to
restrictions on broadcast media, this does not necessarily mean that it would uphold
a ban on the broadcast of “indecent” language regardless of context, as Pacifica did
not hold that an occasional expletive would justify a sanction.
Strict Scrutiny. We now consider the analysis that the Court might apply if
it chooses not to apply Pacifica in deciding the constitutionality of a ban on the
broadcast of “indecent” language regardless of context. The Court in Pacifica, as
noted, offered two reasons why the FCC could prohibit offensive speech on broadcast
media: “First, the broadcast media have established a uniquely pervasive presence in
the lives of all Americans. Patently offensive, indecent material presented over the
airwaves confronts the citizen, not only in public, but in the privacy of the home. . . .
Second, broadcasting is uniquely accessible to children, even those too young to
read,” and the government has an interest in the “well-being of its youth”and “in
supporting ‘parents’ claim to authority in their own household.’” The first of these
reasons apparently refers to adults as well as to children.
Ordinarily, when the government restricts speech, including “indecent” speech,
on the basis of its content, the restriction, if challenged, will be found constitutional
only if it satisfies “strict scrutiny.”135 This means that the government must prove
that the restriction serves “to promote a compelling interest” and is “the least
restrictive means to further the articulated interest.”136 The Court in Pacifica did not
apply this test or any weaker First Amendment test, and did not explain why it did
not. Its reason presumably was that the FCC’s action restricted speech only on
broadcast media. If, however, the Court were not to apply Pacifica in determining
the constitutionality of a ban, during certain hours, on the broadcast of “indecent”
language regardless of context, then it would apparently apply strict scrutiny.
If the Court were to apply strict scrutiny in making this determination, it seems
unlikely that it would find the first reason cited in Pacifica — sparing citizens,
including adults, from patently offensive or indecent words — to constitute a
compelling governmental interest. The Court has held that the government may not
prohibit the use of offensive words unless they “fall within [a] relatively few
133 (...continued)
in this case, is “an affirmance of the judgment only,” and does not indicate approval of the
reasoning of the court below. Mandel v. Bradley, 432 U.S. 173, 176 (1977).
134 See CRS Report RL33170, Constitutionality of Applying the FCC’s Indecency
Restriction to Cable Television, by Henry Cohen, which concludes that “it appears likely
that a court would find that to apply the FCC’s indecency restriction to cable television
would be unconstitutional.”
135 Sable Communications of California v. Federal Communications Commission, 492 U.S.
115 (1989); Action for Children’s Television v. FCC, supra, 932 F.2d at 1509.
136 Id. at 126.

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categories of instances,” such as obscenity, fighting words, or words “thrust upon
unwilling or unsuspecting viewers.”137
If the Court were to apply strict scrutiny in determining the constitutionality of
a ban, during certain hours, on the broadcast of “indecent” language regardless of
context, it also might not find the second reason cited in Pacifica — protecting
minors from patently offensive and indecent words and “supporting ‘parents’ claim
to authority in their own household’” — to constitute a compelling governmental
interest. When the Court considers the constitutionality of a restriction on speech,
it ordinarily — even when the speech lacks full First Amendment protection and the
court applies less than strict scrutiny — requires the government to “demonstrate that
the recited harms are real, not merely conjectural, and that the regulation will in fact
alleviate these harms in a direct and material way.”138 With respect to restrictions
designed to deny minors access to sexually explicit material, by contrast, the courts
appear to assume, without requiring evidence, that such material is harmful to
minors, or to consider it “obscene as to minors,” even if it is not obscene as to adults,
and therefore not entitled to First Amendment protection with respect to minors,
whether it is harmful to them or not.139 A word used as a mere adjective or expletive,
137 Cohen v. California, supra, 403 U.S. at 19, 21. Under Pacifica, broadcast media do
thrust words upon unwilling or unsuspecting viewers, but, if a court were to apply strict
scrutiny to a ban on the broadcast of “indecent” language regardless of context, then it
would not be following Pacifica.
138 Turner Broadcasting, supra, 512 U.S. at 664 (incidental restriction on speech). See also,
Edenfield v. Fane, 507 U.S. 761, 770-771 (1993) (restriction on commercial speech); Nixon
v. Shrink Missouri Government PAC, 528 U.S. 377, 392 (2000) (restriction on campaign
contributions). In all three of these cases, the government had restricted less-than-fully
protected speech, so the Court did not apply strict scrutiny. Because offensive words are
apparently entitled to full First Amendment protection (except under Pacifica and in the
instances cited in Cohen v. California, quoted in the text above), it seems all the more likely
that the Court, if it applied strict scrutiny instead of Pacifica to a challenge to a ban on the
broadcast of “indecent” words regardless of context, would require the government to
demonstrate that harms it recites are real and that the ban would alleviate these harms in a
direct and material way.
139 Interactive Digital Software Association v. St. Louis County, Missouri, 329 F.3d 954, 959
(8th Cir. 2003). The Supreme Court has “recognized that there is a compelling interest in
protecting the physical and psychological well-being of minors. This interest extends to
shielding minors from the influence of literature that is not obscene by adult standards.”
Sable, supra, 492 U.S. at 126. The Court has also upheld a state law banning the
distribution to minors of “so-called ‘girlie’ magazines” even as it acknowledged that “[i]t
is very doubtful that this finding [that such magazines are “a basic factor in impairing the
ethical and moral development of our youth”] expresses an accepted scientific fact.”
Ginsberg v. New York, supra, 390 U.S. at 631, 641. “To sustain state power to exclude
[such material from minors],” the Court wrote, “requires only that we be able to say that it
was not irrational for the legislature to find that exposure to material condemned by the
statute is harmful to minors.” Id. at 641. Ginsberg thus “invokes the much less exacting
‘rational basis’ standard of review,” rather than strict scrutiny. Interactive Digital Software
Association, supra, 329 F.3d at 959.
A federal district court wrote:
(continued...)

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however, arguably does not constitute sexually oriented material.140 Therefore, if a
court applied strict scrutiny to decide the constitutionality of a ban, during certain
hours, on the broadcast of “indecent” words regardless of context, then, in
determining the presence of a compelling interest, the court might require the
government to “demonstrate that the recited harms are real, not merely conjectural,
and that the regulation will in fact alleviate these harms in a direct and material way.”
This could raise the question, not raised in Pacifica, of whether hearing such words
is harmful to minors. More precisely, it might raise the question of whether hearing
such words on broadcast radio and television is harmful to minors, even in light of
the opportunities for minors to hear such words elsewhere. If the government failed
to prove that hearing certain words on broadcast radio or television is harmful to
minors, then a court would not find a compelling interest in censoring those words
and might strike down the law.
It might still uphold the law, however, if it found that the law served the
government’s interest “in supporting ‘parents’ claim to authority in their own
household,’” and that this is a compelling interest independent from the interest in
139 (...continued)
We are troubled by the absence of evidence of harm presented both before
Congress and before us that the viewing of signal bleed of sexually explicit
programming causes harm to children and that the avoidance of this harm can be
recognized as a compelling State interest. We recognize that the Supreme
Court’s jurisprudence does not require empirical evidence. Only some minimal
amount of evidence is required when sexually explicit programming and children
are involved.
Playboy Entertainment Group, Inc. v. United States, 30 F. Supp.2d 702, 716 (D. Del. 1998),
aff’d, 529 U.S. 803 (2000). The district court therefore found that the statute served a
compelling governmental interest, though it held it unconstitutional because it found that
the statute did not constitute the least restrictive means to advance the interest. The
Supreme Court affirmed on the same ground, apparently assuming the existence of a
compelling governmental interest, but finding a less restrictive means that could have been
used.
In another case, a federal court of appeals, upholding the current statute that bans
“indecent” broadcasts from 6 a.m. to 10 p.m., noted “that the Supreme Court has recognized
that the Government’s interest in protecting children extends beyond shielding them from
physical and psychological harm. The statute that the Court found constitutional in
Ginsberg sought to protect children from exposure to materials that would ‘impair [their]
ethical and moral development. . . . Congress does not need the testimony of psychiatrists
and social scientists in order to take note of the coarsening of impressionable minds that can
result from a persistent exposure to sexually explicit material. . . .’” Action for Children’s
Television v. FCC, supra, 58 F.3d at 662 (brackets and italics supplied by the court). A
dissenting judge in the case noted that, “[t]here is not one iota of evidence in the record . . .
to support the claim that exposure to indecency is harmful — indeed, the nature of the
alleged ‘harm’ is never explained.” Id. at 671 (D.C. Cir. 1995) (Edwards, C.J., dissenting).
140 The full Commission’s decision in the Bono case stated that “any use of that word or a
variation, in any context, inherently has a sexual connotation.” But this does not necessarily
mean that it is sexually oriented enough to cause the courts to assume without evidence that
it is harmful to minors.

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CRS-31
protecting the well-being of minors. In Ginsberg v. New York, the Court referred to
the state’s interest in the well-being of its youth as “independent” from its interest in
supporting “parents’ claim to authority in their own household to direct the rearing
of their children.”141 The holding in Ginsberg, however, did not turn on whether
these interests are independent, and one might argue that they are not, because the
government’s interest in supporting parents lies in assisting them in protecting their
children from harmful influences. If “indecent” words are not a harmful influence,
then, arguably, the government has no interest, sufficient to override the First
Amendment, in supporting parents in their efforts to prevent their children’s access
to them. It has also been argued that “a law that effectively bans all indecent
programming . . . does not facilitate parental supervision. In my view, my right as
a parent has been preempted, not facilitated, if I am told that certain programming
will be banned from my . . . television. Congress cannot take away my right to
decide what my children watch, absent some showing that my children are in fact at
risk of harm from exposure to indecent programming.”142
If the government could persuade a court that a ban, during certain hours, on the
broadcast of “indecent” words regardless of context serves a compelling interest —
either in protecting the well-being of minors or in supporting parents’ claim to
authority — the government would then have to prove that the ban was the least
restrictive means to advance that interest. This might raise questions such as whether
it is necessary to prohibit particular words on weekdays during school hours, solely
to protect pre-school children and children who are home sick some days. In
response to this question, the government could note that the broadcast in Pacifica
was at 2 p.m. on a Tuesday, but was nevertheless considered a “time[ ] of the day
when there is a reasonable risk that children may be in the audience.”143 More
significantly, however, a court might find a ban too restrictive because it would
prohibit the broadcast, between certain hours, of material, including works of art and
other material with serious value, that would not attract substantial numbers of
youthful viewers or listeners.
In conclusion, it appears that, if a court were to apply strict scrutiny to determine
the constitutionality of a ban on the broadcast of “indecent” language regardless of
context, then it might require the government to “demonstrate that the recited harms
are real, not merely conjectural, and that the regulation will in fact alleviate these
harms in a direct and material way.” This would mean that the government would
have to demonstrate a compelling governmental interest, such as that hearing
“indecent” words on broadcast radio and television is harmful to minors, despite the
likelihood that minors hear such words elsewhere, or that banning “indecent” words
is necessary to support parents’ authority in their own household. If the government
could not demonstrate a compelling governmental interest, then the court might find
the ban unconstitutional. Even if the government could demonstrate a compelling
interest, a court might find the ban unconstitutional if it applied to material with
141 Ginsberg, supra, 390 at 640, 639. See also, Action for Children’s Television v. FCC,
supra, 58 F.3d at 661.
142 Action for Children’s Television v. FCC, supra, 58 F.3d at 670 (emphasis in original)
(Edwards, C.J., dissenting).
143 Pacifica, supra, 438 U.S. at 732.

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serious value, at least if such material would not attract substantial numbers of
youthful viewers or listeners.
Whether a court would apply strict scrutiny would depend upon whether, in light
of the proliferation of cable television, it finds Pacifica to remain applicable to
broadcast media. If a court does find that Pacifica remains applicable to broadcast
media, then the court would be faced with questions that Pacifica did not decide:
whether, on broadcast radio and television during hours when children are likely to
be in the audience, the government may prohibit an “indecent” word used as an
occasional expletive, or in material that would not attract substantial numbers of
youthful viewers or listeners.

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