[Note: This is the second in a series of essays about the legacy of the Supreme Court's FCC v. Pacifica Foundation decision, which celebrates its 30th anniversary on July 3rd. Part 1, a general overview of the issue, is here.]
This morning I attended an excellent Freedom Forum conference on “Indecency & Violence in the Media: FCC v. Pacifica 30 Years Later.” At the event, Lili Levi of the University of Miami School of Law delivered a terrific address entitled “A Short History of the Indecency & Media Violence Wars.” (Incidentally, she is also the author of a highly recommended paper on the topic that is available on SSRN: “The FCC’s Regulation of Indecency.”
Prof. Levi sketched out what she called the “5 Eras of FCC Indecency Enforcement.” Below I will summarize the major developments / trends from each era that she outlined for us today: Era #1 (1930s to 1960s) - no serious effort by agency to define “indecency” - an era of moralistic rhetoric, but little direct action by the FCC… - but that’s because there was a lot of industry self-censorship - FCC used “regulation by raised eyebrow” (i.e. bully pulpit) to encourage industry to self-censor - ex: Mae West driven off radio for her “suggestive tone”
Era #2 (1960s to 1973) - FCC still avoiding defining indecency - but more fines begin to be levied anyway - licenses threatened; some are revoked - but all enforcement was administrative; no judicial review of these decisions - so constitutional questions remained unclear
Era #3 (1973 to 1987) - FCC finally adopts a formal definition of indecency in response to George Carlin’s monologue - Supreme Court hands down Pacifica decision in 1978 giving blessing to FCC actions - enforcement focus almost entirely on Carlin’s “seven dirty words” = brighter lines of enforcement - the “seven dirty words” provided a somewhat better indication of how FCC might rule… - but ambiguity remained about some of the specific cases and contexts
Era #4 (1987 to 2001) - FCC reverses course and abandons bright line - reversal largely due to Howard Stern and radio shock jocks - radio shock jocks creatively used sexual innuendo and double entendre to avoid “7 dirty words” - Congress starts pressuring agency for stepped-up enforcement - agency adopts more “generic” approach to indecency enforcement; abandons strict adherence to “7 dirty words” enforcement - but not a lot of fines issued during this period - and most of focus was on radio, not TV - FCC says “context” of broadcasts mean everything, but doesn’t really help nail down what runs afoul of law
Era #5 (2001 to present) - “an era of stringent indecency enforcement” - FCC says context counts by uses it more as a sword than shield - focus shifts more toward television programming - stepped-up interest in Congress and at FCC in enforcement - changes in enforcement process make it easier for advocacy groups to flood Enforcement Bureau with complaints - rise of “automated complaints” - activist groups (ex: Parents Television Council) effectively use process to raise congressional ire & prompt new activism - Congress passed law increasing maximum fines 10-fold (from $32,500 to $325,000) - FCC issues historic fines - renewed interest in policing “blasphemy” - documentaries, live programs, and news no longer exempt from FCC attention / fines - major court cases are filed; still pending - new interest in expanding regulatory scope to include cable & satellite programming and “excessively violent” programming, even though it is likely unconstitutional for FCC to regulate
And that’s where things stand circa 2008.
In the next essay, I’ll take a closer look at twisted logic behind the Court’s Pacifica decision.