Pacifica Anniversary Week, Part 2 (Brief History of Indecency Enforcement)

[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.

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