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Regulation of Broadcast Indecency:
Background and Legal Analysis
Kathleen Ann Ruane
Legislative Attorney
April 5, 2012
Congressional Research Service
7-5700
www.crs.gov
RL32222
CRS Report for Congress
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epared for Members and Committees of Congress
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Regulation of Broadcast Indecency: Background and Legal Analysis
Summary
During the 2012 Super Bowl Halftime Show, the rapper M.I.A. (stage name for the artist
Mathangi “Maya” Arulpragasm) made an indecent gesture during her live performance, reigniting
the debate over whether the FCC could punish broadcasters for fleeting indecency. M.I.A.’s
performance echoed two other prominent television events that have been the subject of ongoing
litigation. The airing of an expletive by Bono (stage name for the artist Paul David Hewson)
during the 2003 Golden Globe Awards, as well as the “wardrobe malfunction” that occurred
during the 2004 Super Bowl halftime show, gave broadcast indecency prominence at the Federal
Communications Commission (FCC) and in the 109th and 110th Congresses. These incidents
resulted in the enactment of P.L. 109-235 (2006), which increased the penalties for broadcast
indecency by tenfold. The litigation between the broadcasters and FCC regarding the legality of
the fines issued in these cases is yet to be resolved. In 2012, the Supreme Court will decide at
least one of these cases and may settle, to some extent, the FCC’s authority to regulate and to
punish indecency over broadcast.
Federal law makes it a crime to utter “any obscene, indecent, or profane language by means of
radio communication” (18 U.S.C. §1464). Violators of this statute are subject to fines and
imprisonment of up to two years; the FCC may enforce this provision by forfeiture or revocation
of a broadcaster’s license. The FCC has found that for material to be “indecent,” it “must describe
or depict sexual or excretory organs or activities,” and “must be patently offensive as measured
by contemporary community standards for the broadcast medium.” The federal government’s
authority to regulate material that is “indecent” but not obscene was upheld by the Supreme Court
in Federal Communications Commission v. Pacifica Foundation, which found that prohibiting
such material during certain times of the day does not violate the First Amendment.
In 1992, Congress enacted P.L. 102-356 (47 U.S.C. §303 note), Section 16(a) of which, as
interpreted by the courts, requires the FCC to prohibit “indecent” material on broadcast radio and
broadcast television from 6 a.m. to 10 p.m. Under P.L. 109-235, “indecent” broadcasts are now
subject to a fine of up to “$325,000 for each violation or each day of continuing violation, except
that the amount assessed for any continuing violation shall not exceed a total of $3,000,000 for
any single act or failure to act.” Fines may be levied against broadcast stations, but not against
broadcast networks. The FCC appears to have the statutory authority to fine performers as well
(up to $32,500 per incident), but 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.”
The federal restriction on “indecent” material applies only to broadcast media. This stems from
the fact that there are a limited number of broadcast frequencies available. The Supreme Court,
therefore, interprets the First Amendment in a manner that allows the government to regulate
speech via broadcast media to a greater extent than via other media. This report discusses the
legal evolution of the FCC’s indecency regulations, and provides an overview of how the current
regulations have been applied. Two recent cases have considered to what extent broadcast
indecency can be regulated before First Amendment rights are impermissibly infringed. Fleeting
expletives and images in the Bono and Super Bowl halftime show cases have been subject to
government enforcement action, and those enforcement actions have been challenged as
violations of the First Amendment. The Supreme Court in Pacifica left open the question whether
broadcasting an occasional expletive, as in the Bono case, would justify a sanction. As noted
above, the Supreme Court has recently agreed to hear a case that may decide this question.
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Regulation of Broadcast Indecency: Background and Legal Analysis
Contents
Introduction...................................................................................................................................... 1
Evolution of the FCC’s Indecency Regulations............................................................................... 2
Current Regulations ......................................................................................................................... 4
Explicitness or Graphic Nature of Material............................................................................... 6
Dwelling or Repetition of Potentially Offensive Material......................................................... 6
Pandering or Titillating Nature of Material ............................................................................... 7
Golden Globe Awards Decision....................................................................................................... 7
Super Bowl Halftime Show Decision............................................................................................ 10
Supreme Court and Appeals Court Decisions in the Fleeting Expletive and Fleeting
Image Cases................................................................................................................................ 11
FCC v. Fox Television, Inc. (Supreme Court Decision).......................................................... 12
Fox Television, Inc. v. FCC (Second Circuit Decision, Following Remand from
Supreme Court) .................................................................................................................... 14
CBS Corp. v. FCC (First Third Circuit Decision, Prior to Supreme Court Remand).............. 16
CBS Corp. v. FCC (Second Third Circuit Decision, Following Supreme Court
Remand) ............................................................................................................................... 17
Current Status .......................................................................................................................... 18
Would Prohibiting the Broadcast of “Indecent” Words Regardless of Context Violate the
First Amendment?....................................................................................................................... 19
Broadcast Media...................................................................................................................... 23
Strict Scrutiny.......................................................................................................................... 25
Contacts
Author Contact Information........................................................................................................... 29
Acknowledgments ......................................................................................................................... 29
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Regulation of Broadcast Indecency: Background and Legal Analysis
Introduction
During the 2012 Super Bowl Halftime Show, the rapper M.I.A. made an indecent gesture during
her live performance, reigniting the debate over whether the FCC could punish broadcasters for
fleeting indecency.1 M.I.A.’s performance echoed two other prominent television events that have
been the subject of ongoing litigation. The airing of an expletive by Bono during the 2003 Golden
Globe Awards, as well as the “wardrobe malfunction” that occurred during the 2004 Super Bowl
halftime show, gave broadcast indecency prominence at the Federal Communications
Commission (FCC) and in the 109th and 110th Congresses. These incidents resulted in the
enactment of P.L. 109-235 (2006), which increased the penalties for broadcast indecency by
tenfold. The litigation between the broadcasters and FCC regarding the legality of the fines issued
in these cases is yet to be resolved. In 2012, the Supreme Court will decide at least one of these
cases and may settle, to some extent, the FCC’s authority to regulate and to punish indecency
over broadcast.
Federal law makes it a crime to utter “any obscene, indecent, or profane language by means of
radio communication” (18 U.S.C. §1464). Violators of this statute are subject to fines and
imprisonment of up to two years, and the FCC may enforce this provision by forfeiture or
revocation of a broadcaster’s license. The FCC has found that, for material to be “indecent,” it
“must describe or depict sexual or excretory organs or activities,” and “must be patently offensive
as measured by contemporary community standards for the broadcast medium.” The federal
government’s authority to regulate material that is “indecent” but not obscene was upheld by the
Supreme Court in Federal Communications Commission v. Pacifica Foundation, which found
that prohibiting such material during certain times of the day does not violate the First
Amendment.
In 1992, Congress enacted P.L. 102-356 (47 U.S.C. §303 note), Section 16(a) of which, as
interpreted by the courts, requires the FCC to prohibit “indecent” material on broadcast radio and
broadcast television from 6 a.m. to 10 p.m. Under P.L. 109-235, “indecent” broadcasts are now
subject to a fine of up to “$325,000 for each violation or each day of continuing violation, except
that the amount assessed for any continuing violation shall not exceed a total of $3,000,000 for
any single act or failure to act.” Fines may be levied against broadcast stations, but not against
broadcast networks. The FCC appears to have the statutory authority to fine performers as well
(up to $32,500 per incident), but 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.”
It is important to note that the federal restriction on “indecent” material applies only to broadcast
media, and this stems from the fact that there are a limited number of broadcast frequencies
available and that the Supreme Court, therefore, allows the government to regulate broadcast
media more than other media. This report discusses the evolution of the FCC’s indecency
regulations, provides an overview of how the current regulations have been applied, and
examines recent cases examining the FCC’s authority to regulate broadcast indecency.
1 David Bauder, “M.I.A. Flashes Middle Finger During Super Bowl Halftime Show,” Associated Press via Huffington
Post (February 5, 2012), http://www.huffingtonpost.com/2012/02/05/mia-flips-bird-super-bowl-middle-
finger_n_1256338.html.
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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.”2 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.3 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.4 In Pacifica, the Supreme Court affirmed
the commission’s order regarding the airing of comedian George Carlin’s “Filthy Words”
monologue.5 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. Section 1464.6 Pursuant to the Court’s decision, whether any such
material is “patently offensive” is determined by “contemporary community standards for the
broadcast medium.”7 The Court noted that indecency is “largely a function of context—it cannot
be judged in the abstract.”8
The commission’s order in the Pacifica case relied partially on a spectrum scarcity argument.
That argument posits that there is a scarcity of spectrum space, which requires the government to
license the use of such space in the public interest, and partially on “principles analogous to those
found in the law of nuisance.”9 The commission noted that 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.10 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.11 The commission further clarified its earlier
2 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).
3 47 U.S.C. §503(b).
4 438 U.S. 726 (1978).
5 The United States 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.
6 438 U.S. at 732.
7 Id.
8 Id. at 742.
9 Id. at 731; see, In the Matter of a Citizen’s Complaint Against Pacifica Foundation Station WBAI (FM), New York,
New York, 56 F.C.C.2d 94 (1975).
10 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).
11 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.
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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.12
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.”13
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.14 The commission followed the congressional mandate
and promulgated regulations prohibiting all broadcasts of indecent material.15 The new
regulations were challenged, and the United States Court of Appeals for the District of Columbia
Circuit vacated the commission’s order.16 In so doing, the court noted that in ACT I it held that the
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.17
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.18 The commission promulgated regulations as mandated in the act.19 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.20 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.21 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.22 Despite the finding of compelling
12 2 F.C.C. Rcd. 2698, ¶¶ 12 and 15.
13 852 F.2d 1332, 1344 (1988).
14 P.L. 100-459, §608.
15 Enforcement of Prohibitions Against Broadcast Obscenity and Indecency, 4 F.C.C. Rcd. 457 (1988).
16 Action for Children’s Television v. Federal Communications Commission (ACT II), 932 F.2d 1504 (1991), cert.
denied, 503 U.S. 913 (1992).
17 Id. at 1509.
18 P.L. 102-356, §16, 47 U.S.C. §303 note.
19 In the Matter of Enforcement of Prohibitions Against Broadcast Indecency in 18 U.S.C. 1464, 8 F.C.C. Rcd. 704
(1993).
20 Action for Children’s Television v. Federal Communications Commission, 11 F.3d 170 (D.C. Cir. 1993).
21 8 F.C.C. Rcd. at 705-706.
22 11 F.3d at 171.
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Regulation of Broadcast Indecency: Background and Legal Analysis
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.”23
Following the decision of the three-judge panel, the commission requested a rehearing en banc.24
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.25 In so doing, the court held that while the
channeling of indecent 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.”26 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.27 The modified regulations became effective August
28, 1995.28 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.29 Under these
regulations, broadcasts deemed indecent were subject to a forfeiture of up to $32,500 per
violation,30 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.31
23 Id.
24 Action for Children’s Television v. Federal Communications Commission, 15 F.3d 186 (D.C. Cir. 1994).
25 Action for Children’s Television v. Federal Communications Commission (ACT III), 58 F.3d 654 (D.C. Cir. 1995),
cert. denied, 516 U.S. 1043 (1996).
26 58 F.3d at 656.
27 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: Brief Background and Recent Developments, by Kathleen Ann
Ruane.
28 60 FR 44439 (August 28, 1995).
29 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).
30 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, P.L. 104-134, which
amended the Federal Civil Monetary Penalty Inflation Adjustment Act of 1990, P.L. 101-410. See 47 C.F.R. §1.80.
31 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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Fines may be levied against broadcast stations, but not against broadcast networks. The FCC
appears also to have the statutory authority to fine performers for uttering indecent words,32 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.”33
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.34
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.35 If the material in
question does not fall within the subject matter scope of the indecency definition, or if the
broadcast occurred during the “safe harbor” hours (between 10 p.m. and 6 a.m.), the complaint is
usually dismissed. However, if the commission determines that the complaint meets the subject
matter requirements and was aired outside the “safe harbor” hours, the broadcast in question is
evaluated for patent offensiveness. 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.36
A discussion of cases that address each of these factors follows.
32 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 one 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 one year of such date.
33 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.
34 See note 42, supra.
35 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.
36 Id.
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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.37 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.38
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.”39 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 import was inescapable.”40 The nature of the lyrics, coupled with the fact that the song
aired between 6 a.m. and 10 p.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.”41 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.42
For example, the commission determined that the following phrase—”The hell I did, I drove
37 Notice of Apparent Liability, State University of New York, 8 F.C.C. Rcd. 456 (1993).
38 Id.
39 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).
40 6 F.C.C. Rcd. 3692.
41 Notice of Apparent Liability, Citicasters Co., 13 F.C.C. Rcd. 22004 (1998).
42 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.
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mother-f[***]er, oh.”—uttered by an announcer during a radio morning show, was not indecent.43
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.”44
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.45
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 manner, 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.46
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.”47 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.”48
Golden Globe Awards Decision
On January 19, 2003, broadcast television stations in various parts of the country aired the
Golden Globe Awards. During the awards, the singer Bono,49 in response to winning an award,
said, “this is really, really f[***]ing brilliant.”50 Following this event, the FCC received over 230
complaints alleging that the program was obscene or indecent, and requesting that the
commission impose sanctions on the licensees for the broadcast of the material in question.51
43 L.M. Communications of South Carolina, Inc., 7 F.C.C. Rcd. 1595 (1992).
44 Id.
45 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).
46 Notice of Apparent Liability, Rusk Corporation, Radio Station KLOL, 5 F.C.C. Rcd. 6332 (1990).
47 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).
48 Id.
49 Bono’s real name is Paul Hewson.
50 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).
51 Id. at 2.
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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.52 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.”53 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.”54
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.55 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.56 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 reversed commission
precedent regarding the broadcast of the “F-word.”
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.57 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.”58 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, inherently has a sexual connotation, and therefore falls within the first
prong of our indecency definition.”59
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
52 Id.
53 Id. at 3.
54 Id.
55 “FCC Chairman Seeks Reversal on Profanity,” Washington Post, January 14, 2004, at E01.
56 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).
57 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.
58 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).
59 Id. Similarly, in March, 2006, the FCC decided that “s[***]” has an “inherently excretory connotation” and therefore
could not be used from 6 a.m. to 10 p.m. See, @$#&*% Ken Burns! PBS Scrubbing G.I. Mouths With Soap, New York
Observer, October 2, 2006, p. 1.
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“[t]he use of the ‘F-Word’ here, on a nationally telecast awards ceremony, was shocking and
gratuitous.”60 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.”61 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.”62
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. 1464.63 In making this
determination, the commission cited dictionary definitions of “profanity” as “‘vulgar, irreverent,
or coarse language,’”64 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.’”65 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 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.66 The commission noted that
other words would be considered on a case-by-case basis.
In the same order as the Golden Globes decision, the commission described two other award
shows as actionably indecent as well. The incidents were described in an Associated Press article
as “a December 9, 2002, broadcast of the Billboard Music Awards in which singer Cher used the
phrase, ‘F—’em,’ and a December 10, 2003, Billboard awards show in which reality show star
Nicole Richie said: ‘Have you ever tried to get cow s—out of a Prada purse? It’s not so f——
simple.’”67 After appeals to both the Second Circuit and the full commission by Fox Television,
the commission issued a final order declaring the Billboard Music Awards broadcasts in 2002 and
2003 were indecent, but, as in the Golden Globes decision, declined to issue forfeiture orders.
Fox Television appealed to the Second Circuit alleging the FCC had violated the Administrative
Procedure Act (APA) and the First Amendment. The Second Circuit held that the FCC had
60Id. at 5.
61 Id. at 6. See section entitled “Dwelling or Repetition of Potentially Indecent Material,” above.
62 Id.
63 Id. at 7. 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.
64 Id. at 7, citing Black’s Law Dictionary 1210 (6th ed. 1990) and American Heritage College Dictionary 1112 (4th ed.
2002).
65 Id., citing Tallman v. United States, 465 F.2d 282, 286 (7th Cir. 1972).
66 Id.
67 Larry Neumeister, Appeals court panel grills government lawyer in indecency case, Associated Press State & Local
Wire (December 20, 2006).
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violated the APA and invalidated the indecency policy relating to fleeting expletives. The FCC
appealed the decision to the Supreme Court. That case will be discussed in detail below.
Super Bowl Halftime Show Decision
On February 1, 2004, CBS aired Super Bowl XXXVIII, with a halftime 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 halftime performance, and FCC Chairman Michael Powell initiated a formal
investigation into the incident.68
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 violate[d] the federal restrictions
regarding the broadcast of indecent material.”69 The NAL imposed 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.70 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. CBS appealed to the U.S. Court of Appeals for the Third Circuit,
which, in 2008, invalidated the fine, but, in 2009, the Third Circuit’s decision was vacated by the
Supreme Court.71 This case is discussed in greater detail below.
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.72 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.”73 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.74 In determining whether the material in question was intended to
68 http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-243435A1.pdf.
69 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.
70 Id.
71 CBS Corp. v. Federal Communications Commission, 535 F.3d 167 (3d Cir. 2008), vacated and remanded, No. 08-
653 (U.S. May 4, 2009).
72 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.
73 Id. at ¶ 11.
74 Id. at ¶ 13.
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“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.”75 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.76
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.77
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.”78 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.79 CBS
appealed to the U.S. Court of Appeals for the Third Circuit, which, on July 21, 2008, invalidated
the fine, but, on May 4, 2009, the Supreme Court vacated the Third Circuit’s decision.80 The
court’s decision is discussed in greater detail below.
Supreme Court and Appeals Court Decisions in the
Fleeting Expletive and Fleeting Image Cases
Two major cases were decided by federal courts of appeals in 2007 and 2008. Both cases
invalidated forfeiture orders the FCC had issued against broadcasters for transmitting fleeting
indecent material over the airwaves. The first decision, in a case known as Fox Television v. FCC,
was decided by the Second Circuit and invalidated the FCC’s policy on fleeting expletives as a
violation of the Administrative Procedure Act. In April of 2009, the Supreme Court overturned
that decision and remanded the case to the Second Circuit for proceedings consistent with the
Supreme Court’s opinion. Upon reconsideration, the Second Circuit struck down the FCC’s
indecency policy for violating the First Amendment. The FCC has appealed that decision to the
Supreme Court and the Supreme Court has agreed to hear the case.
75 Id. at ¶ 14.
76 Id.
77 Id. at ¶¶ 17 - 24.
78 47 C.F.R. §1.80(f)(3).
79 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).
80 CBS Corp. v. Federal Communications Commission, 535 F.3d 167 (3d Cir. 2008), vacated and remanded, No. 08-
653 (U.S. May 4, 2009).
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In the second appeals court decision, CBS v. FCC, the Third Circuit invalidated the FCC’s policy
relating to fleeting indecent images as a violation of the Administrative Procedure Act. The facts
of the case surrounded the Superbowl Halftime Show discussed above. That case was appealed to
the Supreme Court, but prior to hearing the case, the Court rendered its decision in Fox
Television. The Supreme Court, therefore, ordered the Third Circuit to reconsider the Superbowl
Halftime Show case in light of Fox Television. The Third Circuit has affirmed its decision, finding
that the Supreme Court decision in Fox Television did not change the outcome of its previous
determination. This section will discuss these cases, beginning with the Supreme Court decision
in Fox Television.
FCC v. Fox Television, Inc. (Supreme Court Decision)
The FCC had taken action against, among other broadcasts, two award show incidents, described
in an Associated Press article as, “a December 9, 2002, broadcast of the Billboard Music Awards
in which singer Cher used the phrase, ‘F—’em,’ and a December 10, 2003, Billboard awards
show in which reality show star Nicole Richie said: ‘Have you ever tried to get cow s—out of a
Prada purse? It’s not so f——simple.’”81 These incidents raised two main questions: whether a
fleeting, isolated, and non-literal expletive is “indecent” under federal law, and, if so, whether the
First Amendment permits the FCC to enforce the law by punishing broadcasters for such
utterances.
On June 4, 2007, the U.S. Court of Appeals for the Second Circuit, in a 2-1 decision, found “that
the FCC’s new policy regarding ‘fleeting expletives’ represent[ed] a significant departure from
positions previously taken by the agency and relied on by the broadcast industry.”82 The court
further found “that the FCC ha[d] failed to articulate a reasoned basis for this change in policy.
Accordingly, [the court held] that the FCC’s new policy regarding ‘fleeting expletives’ [was]
arbitrary and capricious under the Administrative Procedure Act.”83 Having overturned the FCC
policy on statutory grounds, the court had no occasion to decide whether it also violated the First
Amendment. It explained, however, why it was “skeptical that the Commission can provide a
reasonable explanation for its ‘fleeting expletive’ regime that would pass constitutional muster.”84
The final section of this report examines this aspect of the court’s opinion.
On April 28, 2009, the Supreme Court, in a 5-4 ruling, overturned the decision of the Second
Circuit.85 The Court found that the policy shift of the FCC was “entirely rational.”86 The Court
found that the Second Circuit had relied on an erroneous interpretation of Supreme Court
precedent when measuring the adequacy of the FCC’s reasoning for its policy shift. According to
the Court, the Second Circuit had applied a heightened standard of review to agency decisions
that effect changes in prior policy. The Second Circuit interpreted that Supreme Court precedent
81 Larry Neumeister, Appeals court panel grills government lawyer in indecency case, Associated Press State & Local
Wire (December 20, 2006).
82 Fox Television Stations, Inc. v. Federal Communications Commission, 489 F.3d 444, 447 (2d Cir. 2007), reversed
and remanded, 129 S. Ct. 1800 (2009).
83 Id.
84 Id. at 462.
85 Federal Communications Commission v. Fox Television Stations, Inc., 129 S. Ct. 1800 (2009).
86 Id. at 1812.
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to require the agency to articulate “why the new rule effectuates the statute as well or better than
the old rule.”87
The Supreme Court found no basis in its precedent or in the Administrative Procedure Act for
such a requirement. The Court explained that the opinion upon which the Second Circuit had
relied did not require agencies to articulate reasons for policy changes that were more substantial
than those required to adopt a policy in the first instance. The precedent held, rather, that new
actions required “a reasoned analysis for the change beyond that which may be required when an
agency does not act in the first instance.”88 The FCC need not have demonstrated that the reasons
for its new policies were better than the reasons for the old one. It was sufficient for the agency to
show that the new policy is permissible under the statute; there are good reasons for it; and the
agency believes it to be better, “which the conscious change of course adequately indicates.”89
Applying this standard to the FCC’s rule change, the Court found that the FCC’s actions were not
arbitrary or capricious. The FCC acknowledged that its actions represented a shift from prior
policy. The Court also found the agency’s reasons for its policy change were “entirely rational,”
because it was not unreasonable to treat literal and nonliteral uses of expletives in the same way.
It was also reasonable, in the Court’s estimation, to find even isolated utterances to fit within the
definition of indecency. As a result, the Court upheld the FCC’s new policy on enforcement of
“fleeting expletives.” The Court, however, declined to rule on the constitutionality of the policy.90
Regarding the issue of constitutionality, the Court noted the dicta of the Second Circuit. The
Second Circuit, having overturned the FCC policy on statutory grounds, had no occasion to
decide whether it also violated the First Amendment. In dicta, however, it explained why it was
“skeptical that the Commission can provide a reasonable explanation for its ‘fleeting expletive’
regime that would pass constitutional muster.”91
The court wrote that it was:
sympathetic to the Networks’ contention that the FCC’s indecency test is undefined,
indiscernible, inconsistent, and consequently, unconstitutionally vague.... We also note that
the FCC’s indecency test raises the separate constitutional question of whether it permits the
FCC to sanction speech based on its subjective view of the merit of that speech. It appears
that under the FCC’s current indecency regime, any and all uses of an expletive is
presumptively indecent and profane with the broadcaster then having to demonstrate to the
satisfaction of the Commission, under an unidentified burden of proof, that the expletives
were “integral” to the work. In the licensing context, the Supreme Court has cautioned
87 Id. at 1810 (discussing Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Autmobile Ins. Co., 463
U.S. 29, 43 (1983)). Justice Breyer, in dissent, disagreed with this interpretation of State Farm. He argued that, when
an agency changes its rules, it must focus on the fact of the change and explaining the change and its basis, which is
more than explaining why the new policy is a good one and in keeping with the statute. It includes answering why the
change has occurred. In Justice Breyer’s opinion, such a requirement does not create a heightened standard, but applies
the same standard to different circumstances. According to Justice Breyer, the FCC’s failure to adequately explain why
it changed policy directions rendered the policy arbitrary and capricious. Id. at 1829.
88 Id. at 1810 (emphasis in original).
89 Id. at 1811.
90 Id. at 1819. In a concurring opinion, Justice Thomas suggested that the viability of the precedents supporting the
constitutionality of the FCC’s indecency policy may be in doubt. Id. at 1819-22. Justice Thomas therefore appears open
to the reconsideration of these precedents.
91 Id. at 462.
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against speech regulations that give too much discretion to government officials.... Finally,
we recognize that there is some tension in the law regarding the appropriate level of First
Amendment scrutiny. In general, restrictions on First Amendment liberties prompt courts to
apply strict scrutiny.... At the same time, however, the Supreme Court has also considered
broadcast media exceptional.... Nevertheless, we would be remiss not to observe that it is
increasingly difficult to describe the broadcast media as uniquely pervasive and uniquely
accessible to children, and at some point in the future, strict scrutiny may properly apply in
the context of regulating broadcast television.92
With respect to the Second Circuit’s dicta regarding the First Amendment question, the Supreme
Court wrote,
It is conceivable that the Commission’s orders may cause some broadcasters to avoid certain
language that is beyond the Commission’s reach under the Constitution. Whether that is so,
and, if so, whether it is unconstitutional, will be determined soon enough, perhaps in this
very case. Meanwhile, any chilled references to excretory and sexual material “surely lie at
the periphery of First Amendment concern,” Pacifica, 438 U.S., at 743 (plurality opinion of
Stevens, J.). We see no reason to abandon our usual procedures in a rush to judgment
without a lower court opinion. We decline to address the constitutional questions at this
time.93
On July 13, 2010, the Second Circuit, as discussed below, invalidated the FCC’s policy because
the court determined it to be unconstitutionally vague.94
Fox Television, Inc. v. FCC (Second Circuit Decision, Following
Remand from Supreme Court)
As a result of the Supreme Court’s decision in FCC v. Fox Television, described above, the case
was remanded to the Second Circuit Court of Appeals for consideration of whether the FCC’s
indecency policy violated the First Amendment.95 On July 13, 2010, a three-judge panel struck
down the FCC’s indecency policy because the court determined it to be unconstitutionally vague.
The panel noted that a law is impermissibly vague “if it does not ‘give the person of ordinary
intelligence a reasonable opportunity to know what is prohibited.’”96 While the vagueness
doctrine does not require perfect clarity, it requires the law to give persons notice of what is
prohibited and what is not. The panel found that the FCC’s policy lacked such notice because it
was impossible to determine what the FCC would find to be “patently offensive” prior to
broadcast, and the application of the exceptions to the FCC’s presumptive prohibitions on two
particular expletives were equally difficult to predict.
The court reached this conclusion by surveying the FCC’s enforcement of its indecency policy,
since its amendments of the policy in 2001. The court lists a number of instances, occasionally
within the same program, where some words that referred to sexual organs or excretion were
92 Id. at 463-465.
93 Federal Communications Commission v. Fox Television Stations, Inc., 129 S. Ct. 1800, 1819 (2009).
94 Fox Television Stations, Inc. v. Federal Communications Commission, 613 F. 3d 317 (2d Cir. 2010).
95 Fox Television Stations, Inc. v. Federal Communications Commission, 613 F. 3d 317 (2d Cir. 2010).
96 Id. at 327 quoting Farrell v. Burke, 449 F. 3d 470, 485 (2d Cir. 2006)(quoting Grayned v. City of Rockford, 408 U.S.
104, 108 (1972)).
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patently offensive (bull***t), and other words that referred to sexual organs or excretion were not
(d**k and d***head).97 In surveying the orders determining which expletives were permissible,
the court could find no explanation offered by the FCC for why certain words were impermissibly
indecent, while others were not.
The FCC argued that because it could not anticipate what broadcasters would say prior to
broadcast, flexibility was necessary to determine what was indecent after the fact.98 The court,
however, seemed to find this argument to contribute to its finding that the policy was
impermissibly vague. “If the FCC cannot anticipate what is indecent under its policy, it can
hardly expect broadcasters to do so,” the court found.99
Even where the policy stated a presumptive violation of the indecency policy, the court found the
policy to be vague.100 The FCC has a presumptive prohibition on the use of the words “f***” and
“sh**” outside of the safe harbor; however, there are two exceptions: the bona fide news
exception and the artistic necessity exception. The court found it difficult to discern when either
exception applied. For example, the use of these words in a broadcast of the fictional movie,
Saving Private Ryan, did not violate the FCC’s indecency policy because they fell under the
artistic necessity exception. However, the use of these same words in the documentary “The
Blues” did violate the policy and did not qualify for the exception. The court asked “how fleeting
expletives could be more essential to the ‘realism’ of a fictional movie than to the ‘realism’ of
interviews with real people about real life events.”101 The court continued, stating “it is hard not
to speculate that the FCC simply was more comfortable with the themes in” Saving Private Ryan,
raising the specter of censorship concerns.102 The court avoided accusing the FCC of suppressing
particular viewpoints, but noted that “nothing would prevent the FCC from applying its indecency
policy in a discriminatory manner in the future.”103 The court also pointed out inconsistent
applications of the bona fide news exception. The court cited an instance wherein the FCC found
the use of one of the presumptively prohibited words to be indecent because it was uttered during
a morning news program, only for the FCC to reverse its decision and find that the use of the
word was not indecent because it was used during a morning news program.104
The panel noted that the FCC’s policy had a significant chilling effect on the speech of
broadcasters and noted a number of programs that broadcasters had refused to air for fear of
violating the policy. “By prohibiting all ‘patently offensive’ references to sex, sexual organs, and
excretion without giving adequate guidance as to what ‘patently offensive’ means, the FCC
effectively chills speech, because broadcasters have no way of knowing what the FCC will find
offensive.”105 Thus, the court struck down the policy.
Notably, the court did not decide whether it was unconstitutional to punish “fleeting expletives”
or single uses of an indecent word or image. Instead, the court invalidated the FCC’s entire
97 Id. at 330.
98 Id. 331.
99 Id.
100 Id.
101 Id. at 332.
102 Id.
103 Id.
104 Id. at 331.
105 Id. at 334.
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indecency policy as impermissibly vague, a broader decision than might have been expected
under the facts of the case.
CBS Corp. v. FCC (First Third Circuit Decision, Prior to Supreme
Court Remand)
On July 21, 2008, a year after the Second Circuit had rendered its initial decision invalidating the
FCC’s policy toward “fleeting expletives,” the U.S. Court of Appeals for the Third Circuit issued
a unanimous decision to invalidate the FCC’s fine against CBS broadcasting station affiliates for
the broadcast of the Super Bowl Halftime Show that included a brief instance of partial nudity.106
The court decided to invalidate the fine because the FCC had acted arbitrarily and capriciously
when finding that the brief nudity was actionably indecent.
In its review of the FCC’s previous actions in this area, the court noted that the FCC has the
power to regulate indecency over the broadcast airwaves, but for much of the FCC’s history the
agency maintained an exception for fleeting instances of indecency.107 The commission argued
that its policy exempting fleeting instances of indecency over broadcast from enforcement applied
only to fleeting indecent language and not to images.108 The FCC claimed that fleeting indecent
images had always been subject to enforcement; therefore, there was no departure from the FCC’s
previous approach to sanctions regarding such images. As a result, the FCC argued that the
agency did not have to articulate a reasoned basis for its shift in policy, and it provided none.
The court examined the FCC’s claim that the agency had previously made the distinction between
images and language and that indecent fleeting images had always been subject to FCC
enforcement.109 The court found those claims to be unfounded. In its review of the FCC’s
previous decisions, the court could find no distinction between the way the agency treated
fleeting indecent language as opposed to indecent images.110 The court cited instances in which
the FCC declined to issue fines for fleeting indecent images. In declining to institute enforcement
actions, the agency had stated that the images were fleeting and covered by its policy of non-
enforcement.111 The court decided, on that basis, that the FCC’s decision to consider the fleeting
indecent image broadcast during the Halftime Show to be actionable was a shift in the FCC’s
policy towards the enforcement against such images.
Because the agency had decided to implement a policy shift, the agency was required to articulate
a reasoned basis for doing so in order for the departure to be valid under the Administrative
Procedure Act.112 As noted above, the FCC argued that its policy toward fleeting indecent images
had not changed. Consequently, the FCC articulated no reason for the shift in policy identified by
the court of appeals. Because the FCC provided no basis for its departure from previous
106 CBS Corp. v. Federal Communications Commission, 535 F.3d 167 (3d Cir. 2008), vacated and remanded, No. 08-
653 (U.S. May 4, 2009). For a discussion of the incidents giving rise to the FCC’s forfeiture order, see the section
entitled “Super Bowl Halftime Show Decision,” supra.
107 Id. at 174.
108 Id.
109 Id. at 176-184.
110 Id. at 184.
111 Id. at 184-185.
112 Id. at 188-189.
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enforcement practices, the court held that the deviation from the prior policy of restraining from
enforcement against fleeting images was arbitrary and capricious to the extent that it violated the
APA.113 The fine, therefore, could not be imposed on CBS for two reasons. First, the underlying
policy shift was invalid, having no reasoned basis. Second, even if the policy had a reasoned
basis, the enforcement action against CBS represented the first time that the FCC had articulated
its intention to take action against fleeting indecent images (assuming, as the commission argued,
that it had not done so in its Golden Globes decision). The new policy could not be applied
retroactively to fine CBS in this case.114 The court did not consider whether a policy punishing
fleeting indecent images over broadcast television would violate the First Amendment.
The FCC petitioned the Supreme Court for certiorari.115 On May 4, 2009, the Court granted the
petition, vacated the judgment, and remanded the case to the Third Circuit for further
consideration in light of the Supreme Court’s decision in FCC v. Fox Television Stations, Inc.116
CBS Corp. v. FCC (Second Third Circuit Decision, Following
Supreme Court Remand)
Following the remand of the Supreme Court for reconsideration of its decision in light of Fox
Television, the Third Circuit reconsidered the case. In a 2-1 decision, the panel held that Fox
confirmed the court’s previous decision to invalidate the FCC’s policy, and found again that the
FCC did not adequately justify its policy change toward fleeting images before imposing a
penalty on CBS.117 The court therefore invalidated the FCC’s policy toward fleeting images of
indecency.
The majority of the panel began its opinion by explaining why the Supreme Court’s decision in
Fox Television supported the court’s decision to reverse the fine imposed on CBS for broadcasting
the Halftime Show.118 In Fox Television, the FCC had acknowledged that its enforcement action
against the fleeting words at issue was a new policy, and had articulated reasons for its policy
change that the Supreme Court upheld as rational and not a violation of the APA.119 In the first
case before the Third Circuit, the FCC was not arguing that there had ever been a shift in the
FCC’s policy of bringing enforcement actions against fleeting indecent images. As a result, the
FCC articulated no basis for a policy change.120 The agency did not believe that it was required to
do so because it believed the action it was taking was consistent with its prior policy toward
113 Id. at 189.
114 Id. Upon deciding that the FCC’s new policy regarding fleeting images was invalid under the APA, the court was
not obligated to reach the second question raised by the case, which was whether CBS had properly been held
vicariously liable for the actions of the performers. The court chose, however, to address this question in dicta, and
determined that, under two of the FCC’s theories of vicarious liability, the fine would have been improperly imposed
upon the broadcasters. As to a third FCC theory of vicarious liability, which was that the broadcasters had willfully
violated the FCC’s regulations by failing to take adequate precautionary measures, the court determined that the
definition of “willful” was unclear and remanded the question to the FCC for a decision on that issue. See CBS Corp. v.
FCC, 535 F.3d 167, 189-209 (3d Cir. 2008).
115 Petition for Writ of Certiorari, CBS v. FCC, No. 08-653.
116 FCC v. CBS Corp., 129 S. Ct. 2176 (2009).
117 CBS Corp. v. FCC, 2011 U.S. App. LEXIS 22501 (3d Cir. 2011).
118 Id. at *4.
119 Id. at *10.
120 Id. at 11.
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images such as those broadcast during the Halftime Show. The FCC argued on remand to the
Third Circuit that the Court’s decision in Fox Television supported the FCC’s argument that the
agency’s previous policy regarding fleeting indecency applied only to non-literal expletives and
not to literal indecency.121 The FCC also argued that indecent images were, by their nature, literal
indecency.
The Third Circuit did not agree, and reiterated its finding that the FCC’s historical fleeting
indecency policy did not apply only to non-literal expletives.122 To support its argument, the panel
noted an FCC decision to issue a forfeiture order against broadcast stations that had aired a brief
image of a man’s penis.123 The FCC began its analysis by acknowledging that the image was
fleeting, and conducted its general analysis for whether the enforcement exception should apply.
The FCC did not hold that the exception should not apply because the indecency took the form of
an image. Instead, the FCC found the broadcast did not fall under the exception because the
exposure was meant to pander to the viewers, the station knew in advance that such exposure was
part of the act the program would cover, and the station failed to take the proper precautions.
Thus, in the panel’s opinion, this decision gave evidence to the FCC’s belief that the enforcement
exception applied to images.124 Accordingly, the panel found that the Supreme Court’s decision in
Fox Television again struck down the FCC’s forfeiture order against the CBS broadcasting
affiliates.
Judge Scirica, the author of the previous unanimous Third Circuit decision, dissented on remand.
Judge Scirica believed the Supreme Court’s decision in Fox Television undermined the previous
holding in this case because the Supreme Court case “compels the conclusion that the fleeting
exemption was limited to a particular type of words.”125 Therefore, the action taken against CBS
for the broadcast of an indecent image did not represent a change in policy, and passed muster
under the APA.
Current Status
The Supreme Court has agreed to review the decision of the Second Circuit, striking down the
FCC’s policy as a violation of the First Amendment.126 Oral arguments were held on January 10,
2012.127 A decision has not been handed down yet; however, at least one Justice has suggested a
willingness to strike down the policy as a violation of the First Amendment.128 It is unclear
whether the FCC will appeal the latest decision by the Third Circuit.
121 Id. at *17.
122 Id. at *27.
123 Id. at *28.
124 Id. at *31.
125 Id. at *92.
126 FCC v. Fox Television, Inc., 2011 U.S. LEXIS 4926 (June 27, 2011).
127 FCC v. Fox Television Stations, The Oyez Project at IIT Chicago-Kent College of Law, http://www.oyez.org/cases/
2010-2019/2011/2011_10_1293 (last visited March 30, 2012).
128 See FCC v. Fox Television, 129 S. Ct. at 1820 (Thomas J., concurring).
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Would Prohibiting the Broadcast of “Indecent”
Words Regardless of Context Violate the First
Amendment?
Prior to striking down the FCC’s most recent indecency policy for vagueness, the Second Circuit
analyzed the continued vitality of the Supreme Court’s 1978 broadcast indecency case, Federal
Communications Commission v. Pacifica. In that case, 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.129 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.130 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.
In its most recent opinion in Fox Television v. FCC, the Second Circuit questioned the continued
application of a special First Amendment standard to broadcasters.131 One of the original
justifications for the lowered broadcast free speech standard was the unique position of broadcast
in the United States’ media landscape. Broadcast was, according to the Pacifica Court, “uniquely
accessible to children” and “uniquely pervasive in the lives of all Americans.”132 The Second
Circuit found that the same cannot be said today.133 With the ubiquity of cable, satellite, and the
Internet, the Second Circuit found it difficult to hold that broadcasting remains uniquely
pervasive. The Second Circuit also pointed out that blocking and filtering technology for
broadcasts, like the V-chip, may provide a less restrictive means for managing indecent content
over broadcast than the sanctions upheld in Pacifica and enforced by the FCC.134 Nonetheless, the
Second Circuit recognized that Pacifica remained controlling precedent and applied the standard
set forth by the Supreme Court in that case.
Even if Pacifica remains valid, 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:
129 438 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.
130 521 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).
131 Fox Television Stations, Inc. v. Federal Communications Commission, 613 F. 3d at 325 - 327.
132 Pacifica, 438 U.S. at 748,
133 Fox Television, 613 F.3d at 325.
134 Id. at 326.
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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.135
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 command the attention of many
children.”136 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.”137 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.”138
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.139
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
135 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).
136 Id. at 750, n.29.
137 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.
138 Id. at 746.
139 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.
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‘hard core’ sexual conduct,” which would otherwise be obscene, may not be prohibited if they
have “serious literary, artistic, political, or scientific value.”140 In addition, the “harmful to
minors” statutes of the sort that the 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.141 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, Justice Stevens noted 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 be likely to 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 community standards for the broadcast medium, sexual or excretory activities and
organs.”142
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,
140 Miller v. California, 413 U.S. 15, 27, 24 (1973). In addition, in striking down parts of 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.
141 390 U.S. 629 (1968).
142 Pacifica, supra, 438 U.S. at 731-732.
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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.”143 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.”144 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 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.145
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
143 Id. at 732 (distinguishing “indecent” from “obscene” and “profane” in 18 U.S.C. §1464).
144 Id. at 740.
145 Id. at 748-750.
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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.”146 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.”147 “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).”148
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.149
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.150
146 395 U.S. 367, 369 (1969).
147 Id. at 388.
148 Id. at 394.
149 Id. at 396.
150 512 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).
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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.151 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.”152
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.153 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.”154
But, whether or not spectrum scarcity has become a thing of the past, it 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.”155 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; that is, content-based restrictions on
151 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).
152 512 U.S. at 638 (citation omitted).
153 Syracuse Peace Council v. FCC, 867 F.2d 654 (D.C. Cir. 1989), cert. denied, 493 U.S. 1019 (1990).
154 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 decision to eliminate it was a reasonable
interpretation of the statutory requirement that licensees operate in the public interest.
155 518 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.
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cable television receive strict scrutiny.156 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.157 It is
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.158
As noted above, the Second Circuit questioned the continued vitality of Pacifica in its most recent
Fox Television decision.159 Justice Thomas also indicated a willingness to reconsider the special
lower First Amendment standard applied to broadcasters in his concurrence in the Supreme
Court’s Fox Television decision.160 It is possible, therefore, that the Supreme Court might be
poised to take up the question of the First Amendment standard that should be applied to
broadcasters in the near future. In any event, 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
What analysis might the Court apply 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
156 529 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).
157 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 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).
158 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.”
159 Fox Television, 613 F.3d at 325-327.
160 FCC v. Fox Television, 129 S. Ct. at1820 (Thomas J. concurring).
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scrutiny.”161 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.”162 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 categories of instances,” such as obscenity, fighting words, or words “thrust upon
unwilling or unsuspecting viewers.”163
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.”164 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.165 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
161 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.
162 Id. at 126.
163 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.
164 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.
165 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
(continued...)
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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). A
word used as a mere adjective or expletive, however, arguably does not constitute sexually
oriented material.166 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 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.”167 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,
(...continued)
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: “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.
166 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.
167 Ginsberg, supra, 390 at 640, 639. See also, Action for Children’s Television v. FCC, supra, 58 F.3d at 661.
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sufficient to override the First Amendment, in supporting parents in their efforts to prevent their
children’s access to them. A judge has also 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.”168
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.”169 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 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.
168 Action for Children’s Television v. FCC, supra, 58 F.3d at 670 (emphasis in original) (Edwards, C.J., dissenting).
169 Pacifica, supra, 438 U.S. at 732.
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Author Contact Information
Kathleen Ann Ruane
Legislative Attorney
kruane@crs.loc.gov, 7-9135
Acknowledgments
This report was originally written by Henry Cohen, Legislative Attorney.
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