The FCC and Regulating Indecency (Point Counterpoint)

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The FCC and Regulating Indecency


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Affirmative Action Amateur Athletics American Military Policy Animal Rights Capital Punishment DNA Evidence Election Reform Freedom of Speech Gay Rights Gun Control Immigration Policy Legalizing Marijuana Mandatory Military Service Mental Health Reform Open Government Physician-Assisted Suicide Policing the Internet Religion in Public Schools Rights of Students Search and Seizure Smoking Bans The FCC and Regulating Indecency The Right to Privacy Trial of Juveniles as Adults The War on Terror Welfare Reform


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The FCC and Regulating Indecency Paul Ruschmann

SERIES CONSULTING EDITOR

Alan Marzilli, M.A., J.D.

Philadelphia


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CHELSEA HOUSE PUBLISHERS VP, NEW PRODUCT DEVELOPMENT Sally Cheney DIRECTOR OF PRODUCTION Kim Shinners CREATIVE MANAGER Takeshi Takahashi MANUFACTURING MANAGER Diann Grasse

Staff for THE FCC AND REGULATING INDECENCY EXECUTIVE EDITOR Lee Marcott EDITORIAL ASSISTANT Carla Greenberg PHOTO EDITOR Sarah Bloom PRODUCTION EDITOR Noelle Nardone SERIES AND COVER DESIGNER Keith Trego LAYOUT 21st Century Publishing and Communications, Inc. ©2005 by Chelsea House Publishers, a subsidiary of Haights Cross Communications. All rights reserved. Printed in China.

http://www.chelseahouse.com First Printing 1 3 5 7 9 8 6 4 2 Library of Congress Cataloging-in-Publication Data Ruschmann, Paul. The FCC and regulating indecency/Paul Ruschmann. p. cm.—(Point/counterpoint) Includes bibliographical references and index. ISBN 0-7910-8363-2 (hardcover) 1. Television programs—Law and legislation—United States. 2. Radio programs— Law and legislation—United States. 3. Obscenity (Law)—United States. I. Title. II. Point-counterpoint (Philadelphia, Pa.) KF2805.R87 2005 343.7309'94—dc22 2004024630 All links and web addresses were checked and verified to be correct at the time of publication. Because of the dynamic nature of the web, some addresses and links may have changed since publication and may no longer be valid.


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Foreword

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Free Speech, the Media, and Indecency

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Government Should Protect Young People From Indecent Broadcasts

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The Broadcast Indecency Rule Is Arbitrary and Unjust

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The Broadcast Indecency Rule Should Apply to All Media

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Indecency Standards Should Be Abolished for All Media

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Government Should Encourage the Rating and Filtering of Content

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Rating and Filtering Are Dangerous

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The Future of Indecency Regulation

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Notes Resources Elements of the Argument Appendix: Beginning Legal Research Index

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Foreword Alan Marzilli, M.A., J.D. Durham, North Carolina The debates presented in POINT/COUNTERPOINT are among the most interesting and controversial in contemporary American society, but studying them is more than an academic activity. They affect every citizen; they are the issues that today’s leaders debate and tomorrow’s will decide. The reader may one day play a central role in resolving them. Why study both sides of the debate? It’s possible that the reader will not yet have formed any opinion at all on the subject of this volume — but this is unlikely. It is more likely that the reader will already hold an opinion, probably a strong one, and very probably one formed without full exposure to the arguments of the other side. It is rare to hear an argument presented in a balanced way, and it is easy to form an opinion on too little information; these books will help to fill in the informational gaps that can never be avoided. More important, though, is the practical function of the series: Skillful argumentation requires a thorough knowledge of both sides — though there are seldom only two, and only by knowing what an opponent is likely to assert can one form an articulate response. Perhaps more important is that listening to the other side sometimes helps one to see an opponent’s arguments in a more human way. For example, Sister Helen Prejean, one of the nation’s most visible opponents of capital punishment, has been deeply affected by her interactions with the families of murder victims. Seeing the families’ grief and pain, she understands much better why people support the death penalty, and she is able to carry out her advocacy with a greater sensitivity to the needs and beliefs of those who do not agree with her. Her relativism, in turn, lends credibility to her work. Dismissing the other side of the argument as totally without merit can be too easy — it is far more useful to understand the nature of the controversy and the reasons why the issue defies resolution.

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The most controversial issues of all are often those that center on a constitutional right. The Bill of Rights — the first ten amendments to the U.S. Constitution — spells out some of the most fundamental rights that distinguish the governmental system of the United States from those that allow fewer (or other) freedoms. But the sparsely worded document is open to interpretation, and clauses of only a few words are often at the heart of national debates. The Bill of Rights was meant to protect individual liberties; but the needs of some individuals clash with those of society as a whole, and when this happens someone has to decide where to draw the line. Thus the Constitution becomes a battleground between the rights of individuals to do as they please and the responsibility of the government to protect its citizens. The First Amendment’s guarantee of “freedom of speech,” for example, leads to a number of difficult questions. Some forms of expression, such as burning an American flag, lead to public outrage — but nevertheless are said to be protected by the First Amendment. Other types of expression that most people find objectionable, such as sexually explicit material involving children, are not protected because they are considered harmful. The question is not only where to draw the line, but how to do this without infringing on the personal liberties on which the United States was built. The Bill of Rights raises many other questions about individual rights and the societal “good.” Is a prayer before a high school football game an “establishment of religion” prohibited by the First Amendment? Does the Second Amendment’s promise of “the right to bear arms” include concealed handguns? Is stopping and frisking someone standing on a corner known to be frequented by drug dealers a form of “unreasonable search and seizure” in violation of the Fourth Amendment? Although the nine-member U.S. Supreme Court has the ultimate authority in interpreting the Constitution, its answers do not always satisfy the public. When a group of nine people — sometimes by a five-to-four vote — makes a decision that affects the lives of


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hundreds of millions, public outcry can be expected. And the composition of the Court does change over time, so even a landmark decision is not guaranteed to stand forever. The limits of constitutional protection are always in flux. These issues make headlines, divide courts, and decide elections. They are the questions most worthy of national debate, and this series aims to cover them as thoroughly as possible. Each volume sets out some of the key arguments surrounding a particular issue, even some views that most people consider extreme or radical — but presents a balanced perspective on the issue. Excerpts from the relevant laws and judicial opinions and references to central concepts, source material, and advocacy groups help the reader to explore the issues even further and to read “the letter of the law” just as the legislatures and the courts have established it. It may seem that some debates — such as those over capital punishment and abortion, debates with a strong moral component— will never be resolved. But American history offers numerous examples of controversies that once seemed insurmountable but now are effectively settled, even if only on the surface. Abolitionists met with widespread resistance to their efforts to end slavery, and the controversy over that issue threatened to cleave the nation in two; but today public debate over the merits of slavery would be unthinkable, though racial inequalities still plague the nation. Similarly unthinkable at one time was suffrage for women and minorities, but this is now a matter of course. Distributing information about contraception once was a crime. Societies change, and attitudes change, and new questions of social justice are raised constantly while the old ones fade into irrelevancy. Whatever the root of the controversy, the books in POINT/ COUNTERPOINT seek to explain to the reader the origins of the debate, the current state of the law, and the arguments on both sides. The goal of the series is to inform the reader about the issues facing not only American politicians, but all of the nation’s citizens, and to encourage the reader to become more actively


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involved in resolving these debates, as a voter, a concerned citizen, a journalist, an activist, or an elected official. Democracy is based on education, and every voice counts — so every opinion must be an informed one.

This volume covers an issue that was smoldering long before the Super Bowl XXXVIII halftime show, during which singer Janet Jackson flashed hundreds of millions of television viewers and prompted hundreds of thousands of complaints to the Federal Communications Commission (FCC). Should the government regulate “indecent” material to protect the public? The First Amendment to the Constitution protects freedom of speech and of the press, but how could the nation’s early leaders have predicted a day when teenagers can access a limitless variety of hardcore pornography in classrooms, libraries, or their homes? Current controversies examined include the extent to which the FCC should regulate broadcast television and radio, the prospect of extending indecency regulations to new media such as the Internet and satellite TV, and the use of filtering software to restrict computer users’ access to indecent material on the Internet.

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Free Speech, the Media, and Indecency uper Bowl XXXVIII will not be remembered for Adam Vinatieri’s game-winning field goal but instead for what happened during the halftime show. During a dance number featuring pop stars Justin Timberlake and Janet Jackson, Timberlake tore off part of Jackson’s costume, exposing part of her breast. The halftime show prompted hundreds of thousands of complaints to the Federal Communications Commission, the agency that regulates broadcast television and radio as well as many other forms of communication. Michael Powell, the Commission’s chairman, promised to take action. Super Bowl XXXVIII also re-ignited the debate over indecency on television and radio. The outcome of that debate could determine what we see and hear not only on the airwaves but on other media as well.

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The First Amendment and Free Speech Many Americans believe that the FCC’s threat to fine stations, or even revoke their licenses, for airing indecent programs could violate the First Amendment to the Constitution, which provides: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.1

• Could the government use the indecency rule to harass and punish its opponents?

Over the years, the Supreme Court extended the First Amendment’s scope to include state and local regulation and expanded its protection to include “symbolic speech,” such as plays and concerts. Recently, the Court explained the importance of free speech: It is through speech that our convictions and beliefs are influenced, expressed, and tested. It is through speech that we bring those beliefs to bear on Government and on society. It is through speech that our personalities are formed and expressed. The citizen is entitled to seek out or reject certain ideas or influences without Government interference or control.2

It is also important to note that when speech is silenced, not only the speakers but the potential listeners—and society as a whole—suffer, because fewer messages are sent and the diversity of views is lessened. The First Amendment, however, is not absolute. In some situations, a speaker can face legal consequences for what is said: lying under oath, false advertising, words intended to provoke a fight, and obscenity and indecency.

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THE FCC AND REGULATING INDECENCY

Rise and Regulation of the Media Broadcast Media Commercial radio broadcasts in the United States date back to 1920 when the first station went on the air. Radio quickly became popular, and the new medium attracted more would-be

Fallout From Super Bowl XXXVIII The day after Super Bowl XXXVIII, Federal Communications Commission Chairman Michael Powell issued a statement calling Justin Timberlake and Janet Jackson’s performance “a classless, crass, and deplorable stunt” and ordered an immediate investigation of the entire halftime show. Pressure for a crackdown on broadcast indecency had been building for a long time before the Super Bowl. Advocacy groups such as the Parents Television Council had accused the FCC of neglecting its duty to police the airwaves. Michael Copps, who joined the Commission in 2001, repeatedly criticized his fellow commissioners for not imposing tougher penalties on stations that aired indecent programs. After the Super Bowl, Copps remarked, “This issue has been at the grassroots since long before I came to the FCC, and anyone who thinks it was just one or two recent high-profile incidents that got it going has missed the most important part of the story.”* Shortly after the Super Bowl, Chairman Powell told a gathering of broadcast executives why he found the halftime show so offensive. “What really upset people,” he said,“was the shock and amazement that such material would appear on that program at that time, without warning, and without any reasonable expectation that they would see such a thing.”** That comment represented an about-face from Powell’s original stance toward indecency. Earlier, he had remarked,“I think there’s a lot of garbage on television. There are a lot of things children shouldn’t be seeing. But I don’t know that I want my government as my nanny.” *** Some observers accused Powell of using the indecency issue to divert attention from his controversial votes to ease restrictions on the ownership of stations. Critics also wonder if Powell’s reaction to the halftime show was


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broadcasters than the airwaves could accommodate. This happened because the number of broadcast frequencies allocated to radio, corresponding to the numbers on the radio tuner, was limited. When stations competed for the same frequencies, Congress stepped in to avoid chaos. In 1927, it created the

political grandstanding. In March 2004, he told a gathering of broadcast executives that viewers were not expecting that kind of performance. It can be argued, however, that what occurred was not at all surprising. New York Times columnist Frank Rich has commented that it should not have been. He pointed out that MTV’s publicists had promised “some shocking moments.” Others also questioned Chairman Powell’s fairness. Legal analyst Julie Hilden was disturbed by Powell’s rush to judgment, all but accusing Timberlake and Jackson of lying about the incident being accidental even before he started the investigation. She also accused Powell, who is a lawyer, of applying a vague and arbitrary standard of indecency that leaves broadcasters no choice but to self-censor. On September 22, 2004, the FCC handed down a decision that many observers consider a compromise. It imposed the maximum $27,500 fine on the 20 stations owned by CBS’s parent, Viacom, Inc., but decided not to fine the other CBS stations that aired the show. † * Michael J.Copps,Remarks Before the National Association of Broadcasters Indecency Summit, Washington, D.C., March 31, 2004. Available online at http://hraunfoss.fcc.gov/edocs_ public/attachmatch/DOC-245610A1.pdf. ** Michael Powell, Remarks at the National Association of Broadcasters Summit on Responsible Programming, Washington, D.C., March 31, 2004. Available online at http://hraunfoss.fcc.gov/ edocs_public/attachmatch/DOC-245663A1.pdf. *** Emily Hagemann, “FCC Defines the Indefinable: Indecency,” News Media and the Law 25:2, 24 (Spring 2001). Available online at http://www.rcfp.org/news/mag/25-2/ bct-indecenc.html. † In the Matter of Complaints Against Various Television Licensees Concerning Their February 1, 2004 Broadcast of the Super Bowl XXXVIII Halftime Show, FCC No. 04-209 (2004).


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Federal Radio Commission, which addressed the problem of “spectrum scarcity” by issuing licenses to stations. A broadcast license gave a station exclusive use of a frequency within a geographic area. There was a tradeoff: In exchange for the economically and politically valuable right to monopolize the conversation on its particular bandwidth, each radio license holder was required to comply with FCC rules designed to implement the agency’s understanding of what Congress called “the public interest.” 3

In 1934, Congress passed the Communications Act. The new act kept the licensing system in place and created the Federal Communications Commission. Unlike Britain and Canada, which invested heavily in government-owned networks, the United States left it up to private broadcasters to build networks and operate radio stations. To cover their expenses, broadcasters sold airtime to advertisers and offered their programming free of charge to anyone who owned a radio set. That business model survived. Today, most of the broadcasting industry remains in private hands. • Can the free market provide quality programs? Should the government spend money to fund programs the market cannot support? Should our government establish an American counterpart to the British Broadcasting Corporation?

The nation’s first commercial television station went on the air in 1941, but television did not become a mass medium until the mid-1950s, when millions of Americans could afford television sets. Until the 1960s, most viewers’ choices were limited to three national networks and an independent station or two. As in the case of radio, there was limited room on the television spectrum, and broadcasters needed a license to operate a station.


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Cable Television Because television signals travel in a straight line, they are not always available to viewers in mountainous and rural areas. To solve this problem, companies placed receivers in high places and fed the signals to viewers via cable lines. Cable companies, realizing that cable television was not limited by spectrum scarcity, moved to expand their business. During the 1970s, they began offering new programming, including non-network “superstations” based in Chicago and Atlanta, and entire networks such as ESPN and HBO. Unlike network television, cable programs were supported by subscribers’ fees as well as advertising revenue. At first, cable was regulated exclusively at the local level. A community awarded a cable operator a franchise allowing it to use the public right-of-way to install cable. In return, the cable operator agreed to certain conditions, such as giving the local government and school board their own channels. When the FCC tried to regulate the cable industry, the Supreme Court ruled it had no authority to do so. Beginning in 1984, however, Congress passed a series of laws regulating cable television.

The Internet In the late 1960s, the Defense Department created ARPANet, a network of computers operated by the military and universities. ARPANet enabled computers to keep communicating with one another even if part of the network were destroyed. It became the Internet, a vast “network of networks,” after scientists found a common “language” that allowed computers to communicate with one another. The Internet became a mass medium in the 1990s when browsers enabled users to access images and sound as well as text on the World Wide Web. Today, most Americans use the Internet to access the Web and also to exchange e-mail, post messages, and chat with other users.

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Internet technology also allows businesses, organizations, and individuals to create their own sites and become Web publishers. The law treats them more like newspaper publishers than broadcasters. They do not need licenses, and their content is not regulated by the FCC. At first, Congress hesitated to regulate the Internet, fearing that it might stifle the exchange of ideas and the growth of online commerce. More recently, however, Congress has passed laws against online abuses such as identity theft, spam emails, and stalking.

Regulating Obscenity and Indecency The broadcast indecency rule, which is the FCC’s legal basis for investigating the Super Bowl halftime show, is an offshoot of the law of obscenity. Obscene speech is not just pornographic—that is, something that provokes sexual desire—it is also offensive to the community. During the late nineteenth and early twentieth centuries, the government had almost unlimited power to ban obscenity, which was considered outside the First Amendment’s protection. Our courts followed the reasoning of a British decision, The Queen v. Hicklin, L.R. 3 Q.B. 360 (1868), under which a work could be found obscene if it had the tendency to “deprave and corrupt those whose minds are open to such immoral influences and into whose hands a publication of this sort may fall.” Under the Hicklin standard, material could be found obscene if it was harmful to young people—even though it was not harmful to adults. In addition, a work could be found obscene if it contained just one sexually arousing passage, regardless of its overall literary merit. • Does our society put too much emphasis on sex? Are we too permissive, or are we too puritanical?

During the 1950s, the Supreme Court extended First Amendment protection to nonpolitical expression, including some pornography. Although the Court ruled that obscenity


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was outside the First Amendment, it defined “obscene” narrowly enough to give constitutional protection to works of art and literature that dealt with sex. The Court later refined its definition of obscenity, laying down a three-part test in Miller v. California, 413 U.S. 15 (1973). Under Miller, a work is obscene if (a) an average person, applying contemporary community standards, finds that, taken as a whole, it appeals to one’s prurient interest (an unhealthy interest in sex); (b) it depicts or describes, in a patently offensive way, sex acts specifically defined by state law; and (c) taken as a whole, it lacks serious literary, artistic, political, or scientific value. Miller remains the law of the land with respect to adults. In another case, Ginsberg v. New York, 390 U.S. 629 (1968), the Court ruled that the government could protect young people from pornography that was not obscene for adults but considered “harmful to minors.” All states now have harmful-to-minors laws, which use the Miller test to define what is obscene for young people. Broadcast obscenity, like print obscenity, has no First Amendment protection. Since 1927, it has been illegal to broadcast “any obscene, indecent, or profane language by means of radio communication.” 4 Since it was created, the FCC has strictly enforced this law, fining stations for broadcasting even mildly off-color jokes. In more recent times, a narrower definition of obscenity, combined with greater openness about sex, led to a First Amendment challenge to the Commission’s power to regulate broadcasts. In 1975, the FCC ruled that while a profanity-filled monologue by comedian George Carlin was not obscene, it was nonetheless indecent and therefore could not be aired when young listeners were likely to be in the audience. The Commission defined indecency as “language that describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities and organs, at times of the day when there is a reasonable risk that children may be in the audience.” 5

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The radio station that aired the monologue appealed, but in Federal Communications Commission v. Pacifica Foundation, 438 U.S. 726 (1978), the Supreme Court concluded that the Commission’s regulation of indecency was constitutional. Justice John Paul Stevens, who voted in favor of the Commission, commented on the unique legal status of television and radio: We have long recognized that each medium of expression presents special First Amendment problems. . . . And of all forms of communication, it is broadcasting that has received the most limited First Amendment protection. 6

Pacifica is important because it held that the Commission could regulate constitutionally protected speech. As a federal appeals court observed, “it seems entirely appropriate that the marginal convenience of some adults be made to yield to the imperative needs of the young.” 7 Pacifica is also significant because “indecent” is a broader category of speech than “harmful to minors,” which is limited to sexually arousing material with little or no serious social value. • Is “indecency” too vague a term? Does it depend too much on one’s individual taste?

New Legal Challenges, New Media During the 1980s, policymakers questioned the effectiveness of government regulation of business. Many concluded that market forces would do a better job than government regulators in providing consumers with products and services. Regulations governing everything from airfares to longdistance telephone service were repealed. Television and radio were no exception; FCC rules obligating broadcasters to provide “fair” coverage of important issues and to air


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“educational and informational” programming were done away with. For a while, the FCC’s hands-off approach extended to indecency. Mark Fowler, the Commission chairman appointed by President Reagan, told Americans that if they disliked indecent programs, they should keep their children from watching them. Fowler’s stance angered many Americans, who demanded that Congress take action to clean up the airwaves. Since then, the FCC has periodically cracked down on discussions of sexual acts and bathroom functions. During the early 1990s, for example, the Commission fined Infinity Broadcasting almost $1.7 million for a series of violations by radio “shock jock” Howard Stern. After the Super Bowl, during which Janet Jackson’s breast was partially exposed to television viewers, the FCC took a tough line, imposing multiple fines for the same broadcast and threatening to revoke the licenses of the worst violators. The Commission then turned its attention to television in general. Reversing a decision by its enforcement staff, it ruled that rock musician Bono’s use of the F-word during the Golden Globe Awards show was indecent and warned that profane language would no longer be tolerated. In the wake of such incidents, many Americans believe that penalties for broadcast indecency should be heavier. Both houses of Congress passed bills that would increase fines and make it easier for the FCC to revoke licenses. However, the houses failed to work out the differences between the two bills. Meanwhile, as the Internet entered millions of American homes, news stories warned of the dangers of online pornography. In 1996, Congress responded by passing the Communications Decency Act (CDA), described by some as an attempt to extend the broadcast indecency rule to the Internet. In Reno v. American Civil Liberties Union, 521 U.S. 344 (1997), however, the Supreme Court held that the CDA was unconstitutional,

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in part because its definition of indecency was too broad. The Court determined that the Internet was different from the broadcast media: Neither before nor after the enactment of the CDA have the vast democratic fora of the Internet been subject to the type of government supervision and regulation that has attended the broadcast industry. Moreover, the Internet is

From the Bench Modern American Obscenity Law: Roth v. United States and Miller v. California During the 1950s, the Supreme Court recognized that the First Amendment protected some forms of offensive expression. In Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952), it ruled that New York City could not bar theaters from showing “The Miracle,” an award-winning Italian film that city censors had found blasphemous. Five years later, in Roth v. United States, 354 U.S. 476 (1957), the Court narrowed the definition of obscenity. The Roth court held that a work had to be judged as a whole; a few sexual scenes could no longer render it obscene. It also ruled that a work could not be found obscene unless an average person, applying “contemporary community standards,” concluded that it appealed to an unhealthy interest in sex. Finally, it held that a work was obscene only if it were “utterly without redeeming importance.” Roth left both sides of the obscenity debate dissatisfied. Opponents of pornography complained that the “utterly without redeeming importance” test made it impossible to prosecute obscenity cases; supporters of civil liberties contended the government still had too much leeway to decide what was obscene. Nor did Roth satisfy the Court. For years afterward, justices applied their own standards, sometimes on an ad hoc basis. In one case, a frustrated Justice Potter Stewart said of obscenity,“I know it when I see it.” * In Miller v. California, 413 U.S. 15 (1973), a majority of the Court finally agreed on a legal definition of obscenity. Chief Justice Warren Burger’s opinion set out the now-famous three-part Miller test:


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not as “invasive” as radio or television. . . . Finally, unlike the conditions that prevailed when Congress first authorized regulation of the broadcast spectrum, the Internet can hardly be considered a “scarce” expressive commodity.8

After the Reno decision, Congress again tried to regulate indecent material. In 1998, it passed the Children’s Online Protection Act (COPA), a measure modeled after the harmful-to-minors

(a) whether “the average person, applying contemporary community standards” would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.” Miller, like Roth, focused on the work as a whole and applied community standards. It differed from Roth, however, in several respects. Miller ruled that works should be judged by a local, not a national, standard because the country was too large and diverse for a single “community standard.” It also demanded that a work have “serious” artistic, political, or scientific value in order to receive constitutional protection. Finally, in an effort to give fair notice of what was obscene, it required that a work be “patently offensive”—that is, it depicts sex acts specifically defined by state law. Justice William Douglas, a long-time opponent of obscenity laws, dissented. He argued that the Miller test was still too vague to give fair notice of what was obscene. He also raised a more basic objection. When the Bill of Rights was adopted, there was no recognized “obscenity exception” to the First Amendment. In addition, Douglas argued that the “patently offensive” criterion was contrary to the First Amendment’s purpose, which was to protect offensive as well as popular speech. *

Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring).


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law upheld in Ginsberg. Civil-liberties groups challenged the new act in court. COPA has never been enforced, and the Supreme Court has yet to decide whether it is constitutional. Congress has also passed laws regulating sexually oriented programs on cable television. The courts have generally upheld laws allowing cable operators and parents to block unwanted stations. However, they have been reluctant to approve restrictions on the content of programs because the Supreme Court found less justification for regulating indecency on cable than on broadcast television: There is, moreover, a key difference between cable television and the broadcasting media, which is the point on which this case turns: Cable systems have the capacity to block unwanted channels on a household-by-household basis . . . [and] targeted blocking enables the Government to support parental authority without affecting the First Amendment interests of speakers and willing listeners.9

• Does our society underestimate the ability of young people to think for themselves? Does it overprotect them?

Summary The Super Bowl incident revived a long-standing debate over how far the government may go to protect young people from indecency. That debate raises constitutional questions because indecent speech is protected by the First Amendment. The current legal status of indecency laws can be summarized as follows:

•

Under some circumstances, the government may regulate non-obscene but indecent speech.


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Restrictions on indecent speech are judged by a strict scrutiny standard: The government must “both identify a compelling interest for any regulation it may impose on indecent speech and choose the least restrictive means to further that interest.” 10

•

Some media have greater constitutional protection than others. Television and radio have the least protection because broadcasts are uniquely able to invade the privacy of the home.

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Government Should Protect Young People From Indecent Broadcasts oday, there are more than 1,700 television stations and 13,000 radio stations in the United States whose broadcasts enter almost every home. They have a unique ability, for better or worse, to influence young people. At a time when medication is sealed in childproof packages, dangerous toys can be ordered off the market, and lead-based paint and asbestos are no longer used to build homes, critics allege that broadcasters expose young Americans to harmful television and radio programs.

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Society Has a Responsibility to Protect Young People One of the most important responsibilities of a civilized society is the protection of its weakest members: the elderly, those with physical and mental disabilities, and, especially,

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young people. As the Supreme Court observed, “A democratic society rests, for its continuance, upon the healthy, well-rounded growth of young people into full maturity as citizens.” 11 One way in which society protects young people is to make certain activities off-limits to them. We classify those under a given age—generally 18—as “minors.” One purpose of age restrictions is to discourage young people from making bad decisions, such as taking up smoking, or making decisions that may place them in physical or legal jeopardy. Minors cannot, for example, sign a contract or enlist in the military without their parents’ permission. The other purpose of age restrictions is to protect the rest of society from the consequences of young people’s bad decisions. • Should the age of majority be 18? Should it be higher for some activities, like drinking and gambling?

Like other countries, the United States has laws intended to protect young people from the consequences of sex. It is against the law for those under a certain age to have sexual relations. There are also laws designed to shield young people from exposure to pornography. Most of these laws have been found constitutional. As the Supreme Court explained, “We have 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.” 12

Broadcast Media Are Different From Other Media From the earliest days of radio, the broadcast industry has been held to a different legal standard than private businesses in general. The original reason was spectrum scarcity. As the Supreme Court explained: If 100 persons want broadcast licenses but there are only 10 frequencies to allocate, all of them may have the same “right” (continued on page 28)

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From the Bench “Harmful to Minors”: Butler v. Michigan and Ginsberg v. New York During the 1950s, the obscenity standard spelled out in The Queen v. Hicklin, L.R. 3 Q.B. 360 (1868) came under increasing criticism. Hicklin was finally overruled by the Supreme Court in Butler v. Michigan, 352 U.S. 380 (1957). That case began when Alfred Butler sold an adult novel to an undercover police officer. He was charged with violating §343 of the Michigan Penal Code, which made it illegal to sell pornography “tending to incite minors to violent or depraved or immoral acts.” The trial court found Butler guilty and fined him $100. Butler’s appeal went to the Supreme Court, which unanimously reversed his conviction. Justice Felix Frankfurter wrote the Court’s opinion. He concluded that the effect of §343 was “to reduce the adult population of Michigan to reading only what is fit for children.” Furthermore, because other state laws made it illegal to sell pornography to young people, §343 was “not reasonably restricted to the evil with which it is said to deal.” After the Butler decision, states amended their obscenity laws to prohibit the sale to young people of works that were “harmful to minors.” In 1968, the Supreme Court took up the issue of whether harmful-to-minors laws were unconstitutional. The case began when Sam Ginsberg sold several “girlie” magazines to a 16-year-old. Ginsberg was charged with violating §484-h of the New York Penal Law, which made it unlawful to knowingly sell harmfulto-minors material to someone under the age of 17. The trial court upheld Ginsberg’s conviction, concluding that the purpose of §484-h was: [To] protect minors of high school and junior high school age . . . an age of awakening of sex desires, but also an age where the minors have insufficient maturity to deal with and to properly evaluate the plethora of material dealing with illicit sex, lust, passion, depravity, nudity, and immorality.* The case eventually reached the Supreme Court, which, in Ginsberg v. New York, 390 U.S. 629 (1968), affirmed the conviction by a 6–3 vote. Justice


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William Brennan wrote the majority opinion. He endorsed the concept of “variable obscenity,” under which a work could be obscene for young people but not for adults. He concluded that §484-h furthered parents’ interests in raising their children properly as well as the state’s own interest in the well-being of its young citizens. Ginsberg’s lawyers argued the government had never proved that looking at pornography harmed young people. Justice Brennan responded that “the growing consensus of commentators is that while these studies all agree that a causal link has not been demonstrated, they are equally agreed that a causal link has not been disproved either. We do not demand of legislatures scientifically certain criteria of legislation.” Justice Brennan cited several additional reasons why §484-h was constitutional. It did not forbid a parent to buy pornography and give it to his child, New York’s highest court had spelled out what “harmful to minors” meant, and only those who knowingly violated the law could be punished. Justice Potter Stewart concurred. Because minors lacked the “full capacity for individual choice” required to exercise First Amendment rights, he concluded that the government could set different standards of obscenity for adults and young people. Justice William Douglas dissented, arguing that it was not government’s place to regulate what some members of society considered sinful. He wrote, “It is one thing for parents and the religious organizations to be active and involved. It is quite a different matter for the state to become implicated as a censor.” Justice Abe Fortas also dissented. Although he supported the concept of variable obscenity, he believed §484-h was so broad that it could stop a young person from buying serious works of art and literature—even with parental permission. He also argued that the law was dangerous because it applied not only to panderers of obscenity but also to figures like Ginsberg, who was the target of a “sting” operation by the 16-year-old’s mother. *

People v. Ginsberg, 56 Misc. 2d 882, 883, 290 N.Y.S.2d 239, 240 (Dist. Ct., Nassau Cty. 1966).


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THE FCC AND REGULATING INDECENCY (continued from page 25)

to a license; but if there is to be any effective communication by radio, only a few can be licensed and the rest must be barred from the airwaves.13

In the Pacifica case, the Court offered two additional reasons for regulating the content of broadcasts: 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 also in the privacy of the home. . . . Second, broadcasting is uniquely accessible to children, even those too young to read.14

Studies show that the average young person spends more time watching television than in the classroom. Much of that viewing is unsupervised. According to a 1999 Education Department study, more than 28 million school-age Americans have both parents or their only parent in the work force. At least five million are left home alone each week. Additionally, young people often spend afternoons and evenings watching television outside the home. Therefore, many parents need help from the government to protect their children from indecent broadcasts. As a federal appeals court stated, “It is fanciful to believe that the vast majority of parents who wish to shield their children from indecent material can effectively do so without meaningful restrictions on the airing of broadcast indecency.” 15 Although many FCC rules are no longer in force, the law still holds broadcasters to a high standard. Stations are expected to serve the interests of their communities as well as those of their shareholders. Public service is also an industry tradition. Its leaders once considered broadcasting a profession as much as a business. High standards were reflected in the Television Code, adopted in 1952, which made broadcasters


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accountable to the American public for “respect for the special needs of children, for community responsibility, for the advancement of education and culture, for the acceptability of the program materials chosen, for decency and decorum in production, and for propriety in advertising.” 16 In television’s early days, the networks aired a number of critically acclaimed programs. Some even thought television would help bring families together. The broadcast media, especially the television networks, are still unique. Despite competition from dozens of cable channels, they continue to attract large audiences. Furthermore, the networks are still the home of high-profile events, like the Super Bowl, that viewers expect to be suitable for the entire family.

Enforcement Is Not Only Proper But Overdue Former FCC Chairman Newton Minow, a leading critic of the broadcast television industry, blames broadcasters for paying too much attention to the bottom line: Broadcasters convinced themselves that the secret to “competition” lay not in distinguishing their programming from what was available on cable but in copying it. The competition, such as it was, was to reclaim the well-off younger viewers whom advertisers wanted to reach and who had migrated in significant numbers to cable. To lure them back, broadcasters began to experiment with programs on topics and issues once considered offlimits—much of the material, like cable programming, with strong sexual or violent content.17

Minow and others contend that broadcasters have ignored their responsibilities toward young people. They accuse them of refusing to limit commercials during Saturday cartoon shows, air family-oriented shows during early evening primetime hours, or tone down sexual content and violence.

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Many critics believe that decisions by Congress and the FCC, which have made it possible for media companies to own more stations, have added to the trend toward on-air indecency. According to Peter Ames Carlin, television columnist for The Oregonian, “It’s the Commission’s two decades of media deregulation that led to the relaxed content standards on our TVs. . . . It wasn’t Justin Timberlake who ripped off Janet’s bustier: It was the invisible hand of commerce.” 19 • Have broadcasters gone too far in airing sex and violence, or are they just giving the public what it wants?

Consolidation has especially affected the radio industry. In 1996, Congress repealed a law limiting a company to two stations in the same market and 28 stations nationwide. Now a handful of companies dominate the airwaves in most large cities. Journalist Eric Boehlert called Clear Channel Communications, the nation’s largest owner of radio stations, “the bottom-feeders of corporate radio . . . [who] have merged the bullying piggishness of on-air jocks with the predatory viciousness of modern corporate empire-building.” 19 Boehlert accused Clear Channel of ignoring the interests of the communities it serves, homogenizing its programming, and airing offensive broadcasts such as the live torture and killing of animals. Critics of indecency also blame the FCC for creating the impression that nothing is unacceptable. They note that in the 20 years leading up to Super Bowl XXXVIII, the FCC took steps to fine only two television stations for indecency. The result, they contend, was a flood of offensive programming. During the 2002–2003 season, the Parents Television Council (PTC) compiled a list of the worst prime-time television shows. It found story lines about pornographic “snuff films” on “C.S.I.”; explicit language and nudity on “NYPD Blue”; and references to oral sex, masturbation, and infidelity on “Will and Grace.” PTC and other groups believe that indecent programs have become a serious problem because the FCC has failed to keep


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In the last two decades of the twentieth century, the FCC relaxed many of its regulations, including those governing content standards and media ownership. This Associated Press graphic illustrates the rules for media ownership in effect in 2003. Some argue that increasing media consolidation has led to more indecency on radio and television.

them off the air in the first place. As Commissioner Jonathan Adelstein observed, “Many studies show that the use of the F-word and other vulgarities is becoming more common in


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our society, and in our media. Broadcasters have a responsibility to serve the public interest, and fail to meet it if they contribute to this trend.” 20

How the FCC Enforces the Indecency Rule In 1989, the Federal Communications Commission fined a Chicago radio station $6,000 for an indecent broadcast. The station’s owner, Evergreen Media Corporation, challenged the fine in court, arguing that the broadcast was not indecent if listened to in its entirety. The two sides settled in 1994. Evergreen agreed to drop its lawsuit if the Commission agreed to cancel the fine and publish “industry guidance” relating to its enforcement of the broadcast indecency rule. Seven years later, the Commission issued a Policy Statement* relating to indecency. Part III(A) of the Policy Statement explained that a finding of indecency requires two fundamental determinations. First, the broadcast in question must fall within the FCC’s definition of indecency. Second, it must be “patently offensive” as measured by contemporary community standards. The Policy Statement noted, “The determination . . . is not a local one and does not encompass any particular geographic area,” adding that the “full context” of the broadcast is critical to the issue of patent offensiveness: Explicit language in the context of a bona fide newscast might not be patently offensive, while sexual innuendo that persists and is sufficiently clear to make the sexual meaning inescapable might be. Because determinations are “highly fact-specific,” it is hard to list all the factors that might add to or lessen a broadcast’s offensive character. In Part III(B), the FCC summarized cases to show where it had drawn the line in the past. The Commission relies on three significant criteria in deciding whether a broadcast is indecent: (1) its explicitness or graphic nature; (2) whether it dwells on sexual or bathroom functions or repeats them at length; and (3) whether it is used to pander to, arouse, or shock the audience. Broadcasts ruled not indecent included serious discussions of sex on the Oprah Winfrey and Geraldo Rivera shows and an expletive-filled wiretapped conversation of organized crime figure John Gotti, which prosecutors played at his criminal trial. In many of these cases, efforts were made to warn the audience beforehand.


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Some believe that the FCC made matters worse by issuing unclear guidelines in 2001. Former Commissioner Gloria Tristani voted against the guidelines because they gave the

In Part IV, the FCC outlined the enforcement process.The Commission does not monitor broadcasts for indecent material. Instead, it relies on citizens’ complaints. A complaint must include a tape, a transcript, or “significant excerpts” of the broadcast; the date and time it aired; and the station’s call letters. If the broadcast in question occurred between 6 A.M. and 10 P.M., and the complaint provides evidence of indecency, Commission staff will determine whether the broadcast is patently offensive. If they decide that it could be, the case is referred to the Enforcement Bureau, which examines the broadcast and decides what action to take. Possible outcomes include (1) denying the complaint; (2) asking the station to provide more information; (3) issuing a Notice of Apparent Liability, the first step toward imposing a fine; or (4) referring the case to the full Commission, if it is serious or unusual. If a Notice of Apparent Liability is issued, the station has several options. One is to persuade the FCC that the fine should be reduced or canceled. Another is to appeal within the administrative process. Still another is to refuse to pay, in which case the Commission must ask the Justice Department to file suit to collect. If the case goes to court, the issue of indecency will be tried all over again. The Commission’s vote to approve the guidelines was 4–1. Commissioner Gloria Tristani dissented on the grounds that the Policy Statement perpetuated the myth that the indecency rule was vague and that it might do more harm than good. She wrote: [T]his Policy Statement will likely become instead a “how-to” manual for those licensees who wish to tread the line drawn by our cases. It likely may lead to responses to future enforcement actions that cite the statement as establishing false safe harbors. . . . It would better serve the public if the FCC got serious about enforcing the broadcast indecency standards. *

In the Matter of Industry Guidance on the Commission’s Case Law Interpreting 18 U.S.C. §1464 and Enforcement Policies Regarding Broadcast Indecency, FCC 01-90 (2001)


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impression that the indecency rule was vague and hard to comply with. Decency advocates hope that the recent crackdown will reduce uncertainty over what is prohibited and will discourage broadcasters from “pushing the envelope” and daring the Commission to act. • Is there too much sex on prime-time television? Do television shows present sexual situations in a realistic manner?

Advocacy groups also accuse the Commission of making the indecency rule needlessly difficult to enforce. The Parents Television Council points out that the Commission’s procedures require citizens not only to report indecency but also to provide evidence of it. PTC and other organizations add that until recently, the Commission ignored most complaints, took action against only a handful of stations, and routinely imposed the minimum allowable fine on those found in violation. They also contend that the current maximum fine, $27,500, has little impact on media conglomerates the size of Viacom or Clear Channel Communications, which have annual revenues in the billions of dollars. Finally, they note that the Commission has never tried to revoke licenses of stations owned by large media companies.

The Broadcast Indecency Rule Strikes the Right Balance Supporters of the broadcast indecency rule believe that it strikes the proper balance between free expression and the public interest. They point out that the rule does not ban indecent programs; it merely “channels” them into the hours between 10 P.M. and 6 A.M. In fact, it creates a “safe harbor . . . a period in which radio and television stations may let down their hair without worrying whether they have stepped over any line other than that which separates protected speech from obscenity.” 21 They also contend that the rule protects free expression by considering a broadcast’s “full context.” In an indecency case,


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it makes a difference whether a broadcast was intended to inform the audience or appeal to its cruder instincts. For example, the FCC ruled that the film “Schindler’s List” was not indecent, despite a scene showing full frontal nudity. On the other hand, it found the sexually suggestive “Candy Wrapper Song” indecent, even though it contained no vulgar words. Those who favor the indecency rule reject claims that it is vague and overly broad. They stress that it has existed for 30 years and that it is enforced by a federal agency with expertise in the media. Despite charges that the FCC has sent broadcasters mixed messages, commissioners recently made it clear that certain practices, such as using vulgar words, are violations. Supporters also insist that the Commission was not engaged in a “witch hunt” but instead concentrated on the worst offenders and the most offensive performances.

Summary The government has a responsibility to protect young people from harm resulting from exposure to indecent broadcasts. Television and radio have a unique ability to reach young people whose parents cannot always control what they watch and listen to. The problem of indecent programs has become more serious in recent years, because broadcasters have neglected their obligation to serve the public and the FCC has not aggressively enforced the indecency rule. The rule, which has been found constitutional, accommodates both the government’s interest in protecting young people and the First Amendment right of free speech.

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The Broadcast Indecency Rule Is Arbitrary and Unjust n 2001, FCC Commissioner Harold Furchtgott-Roth voted to approve the Commission’s indecency guidelines but expressed doubt whether the indecency rule itself would survive. He observed:

I

Technology, especially digital communications, has advanced to the point where broadcast deregulation is not only warranted, but long overdue. In my view, the bases for challenging broadcast indecency has been well laid, and the issue is ripe for court review.22

In the Pacifica case, the Supreme Court upheld the rule’s constitutionality by the narrowest of margins. Many believe that Pacifica was wrongly decided and predict that the Court

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will someday reverse it. Meanwhile, critics are raising both practical and legal objections to it.

Indecency Is Vague and Overly Broad Critics’ main objection to the indecency rule is the term indecency itself. Legal experts consider it even more vague than obscenity, a term that for years frustrated the Supreme Court. Former Justice William Brennan once remarked, “I put 16 years into that damn obscenity thing. . . . I tried and tried, and I waffled back and forth, and I finally gave up. If you can’t define it, you can’t prosecute people for it.” 23 Indecency, like obscenity, is determined after the fact. Additionally, the penalties for an indecent broadcast include fines, loss of broadcast license, and even up to two years in prison. With the stakes this high: [Broadcasters will] tend to self-censor to avoid getting anywhere near the fuzzy line between acceptable and unacceptable (or even criminal) speech. Thus it is possible that legitimate (i.e., constitutionally protected) speech will not be transmitted, simply to avoid the risk of regulatory or legal sanction.24

Opponents also maintain that the indecency rule is overly broad. They point out that unlike the Miller test of obscenity, it does not always protect speech with serious social value, such as discussions of sexual health or prison rape. In fact, the monologue found indecent in Pacifica was a commentary on our society’s squeamishness over using vulgar words in public. Another objection is that the indecency rule, unlike motion picture ratings, makes no distinction between older teens and younger children. Instead, it puts all viewers younger than 18 into a single category of “minors.” (continued on page 40)

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From the Bench Broadcast Indecency Rule Upheld: Federal Communications Commission v. Pacifica Foundation 18 U.S.C. §1464 makes it illegal to broadcast obscene, indecent, or profane language. During the 1970s, the Federal Communications Commission concluded that “obscene” and “indecent” had different meanings. Its interpretation of §1464 gave rise to the broadcast indecency rule, which the Supreme Court found constitutional in Federal Communications Commission v. Pacifica Foundation, 438 U.S. 726 (1978). The case began when a radio station in New York aired a 12-minute monologue by comedian George Carlin. The monologue, which satirized the taboo about using profane words in public, was part of a program dealing with society’s attitudes toward language. The audience that afternoon included an official of Morality in Media, who was listening with his 15-year-old son. He complained to the FCC, which, at the time, was under pressure to “do something” about vulgar broadcasts. The Pacifica Foundation, which owned the radio station, argued before the FCC that Carlin’s monologue had serious social value and that the audience had been warned of its content beforehand. Nevertheless, the Commission ruled the monologue indecent because it described sexual and bathroom functions in a “patently offensive” manner. The Commission noted: Obnoxious, gutter language describing these matters has the effect of debasing and brutalizing human beings by reducing them to their mere bodily functions. . . . Our society has a tradition of performing certain bodily functions in private, and of severely limiting the public exposure or discussion of such matters. Verbal or physical acts exposing those intimacies are offensive irrespective of any message that may accompany the exposure.* Even though Carlin’s monologue was not obscene, the Commission concluded that it could be limited to certain times of the day, just as zoning laws limited some activities to certain parts of town. Because the radio station aired the monologue at an hour when young people “were undoubtedly in the audience,” the Commission found a violation. Pacifica appealed, arguing that the FCC had power to punish stations only for obscene broadcasts. Five of the nine Supreme Court justices upheld the Commission’s order. Justice John Paul Stevens, writing on behalf of himself and


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two others, held that the Commission had not violated Pacifica’s First Amendment rights. He cited two reasons why speech over the airwaves had less protection than speech on other media. First, television and radio had a “uniquely pervasive presence,” and indecent broadcasts could invade homes without warning. Second, indecent broadcasts were uniquely accessible to young people. Justice Stevens emphasized that his opinion was limited to the facts of the case and that the Commission’s decision rested on reasoning “under which context is all-important.” Justices Lewis Powell and Justice Harry Blackmun agreed that the Commission’s order should have been affirmed, but their reasoning was slightly different: The result turns instead on the unique characteristics of the broadcast media, combined with society’s right to protect its children from speech generally agreed to be inappropriate for their years, and with the interest of unwilling adults in not being assaulted by such offensive speech in their homes. Justice William Brennan dissented. He disputed several of the majority’s conclusions, arguing in particular that it was unconstitutional to regulate speech that was neither obscene nor harmful to minors and that television and radio did not invade privacy because a listener could turn off an offending broadcast. Justice Brennan also warned that the indecency rule could result in an all-out prohibition of vulgarities, which: [C]ould justify the banning from radio of a myriad of literary works, novels, poems, and plays . . . could support the suppression of a good deal of political speech, such as the Nixon tapes; and they could even provide the basis for imposing sanctions for the broadcast of certain portions of the Bible. Justice Potter Stewart also dissented, arguing that it was unnecessary to decide whether the indecency rule was constitutional. He maintained that the FCC had no authority to regulate indecency because §1464 applied only to obscene broadcasts. *

Pacifica Foundation, 56 F.C.C.2d 94, 98 (1975).


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THE FCC AND REGULATING INDECENCY (continued from page 37) • Should the broadcast indecency rule draw a distinction between older teenagers and younger children?

What makes matters worse, critics say, is that the FCC has not consistently enforced the indecency rule. One example is its approach to vulgarity. The Commission’s 2001 guidelines stated that whether a vulgar word was indecent depended on its overall context. Three years later, however, it ruled that using the F-word on the air was indecent per se and warned that the use of other vulgarities—without specifying which ones—could result in penalties. Another example of inconsistency is the FCC’s reaction to Super Bowl XXXVIII. After the game, some journalists pointed out that other portions of the broadcast, such as beer commercials featuring flatulent horses and advertisements for anti-impotence medication warning of four-hour-long erections, were also inappropriate for a family audience. They added that the half-time show two years earlier was almost as suggestive but had not been investigated for indecency. Critics also charge that uneven enforcement is aggravated by the FCC’s awkward procedures. In an extreme case, a broadcaster might wait as long as seven years from the time a program was aired until a court reviews the Commission’s decision that it was indecent. In the meantime, the broadcaster is forced to guess whether the Commission’s ruling will stand up in court. Because it could lose its license for multiple violations, the broadcaster will probably err on the side of caution and avoid programs that might be considered indecent.

The Rule Keeps Protected Speech Off the Airwaves First Amendment lawyers use the expression chilling effect to describe self-censorship motivated by the fear of punishment. The most recent crackdown on indecency had an immediate chilling effect on expression. In the weeks after the Super Bowl,


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NBC removed a scene showing an elderly woman’s breast from the hospital drama “ER,” CBS announced that it would drop a Victoria’s Secret lingerie show, which the FCC had earlier ruled was not indecent, and classic rock stations dropped songs like The Rolling Stones’ “Bitch” from their playlists. Even MTV, a cable network not covered by the indecency rule, shifted its more suggestive videos to late-night hours. As a result, critics argue that the rule kept constitutionally protected decent speech off the airwaves. Some even warn that strict enforcement of the rule will force talented writers and performers to leave broadcast television and radio and find work in other media, such as satellite radio, that are not subject to the rule. The result could be a further homogenization of broadcasts and a continued decline in networks’ audiences. • Has the FCC done enough to define what broadcasts will be ruled indecent?

The Rule Is Unfairly Enforced Former FCC lawyer Robert Corn-Revere, who opposes the indecency rule, contends that while obscenity is governed by the rule of law, “indecency is subject primarily to the whim of the regulator.” 25 He also believes that the Commission’s 2001 guidelines did little to promote even-handed enforcement: Ultimately, the Commission’s “guidance” asks us to trust that those appointed to the FCC will understand and apply the “contextual factors” in a constitutionally sensitive way. Recent experience, however, reminds us that some commissioners are quite comfortable wielding the censor’s shears.26

One problem with the Commission is that its members are often appointed because of their political connections. In fact, critics maintain that the agency has a history of politically motivated censorship. Since 1927, when the law first required

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broadcasters to be licensed, both political parties have used the licensing process to intimidate broadcasters that aired opposing views. During the 1960s, the Commission investigated the Pacifica Foundation because of its employees’ left-wing views and its stations’ on-air discussions of topics such as homosexuality. In 1970, it issued a “Public Notice,” warning stations not to play songs whose lyrics allegedly condoned drug use. Because it is a restriction on content, the indecency rule lends itself to abusive enforcement. The Cato Institute’s Thomas Hazlett and David Sosa liken it to another restriction, the Fairness Doctrine, which the FCC enforced from 1949 to 1987. That rule required broadcasters to provide airtime to opposing speakers on controversial issues. Hazlett and Sosa maintain that advocacy groups misused the rule, filing complaints with the FCC in an effort to stop opponents from broadcasting their views. Some believe that the Commission’s current crackdown is likewise influenced by politics. Representative Gary Ackerman (D-NY), one of the few members of Congress who voted against tougher indecency penalties, argued that the real issue was “media power concentrated in the hands of so few and influenced by the far right and the religious right.” 27 The FCC’s guidelines state that the standard of indecency “is that of an average broadcast viewer or listener and not the sensibilities of any individual complainant.” 28 Nevertheless, some believe that the Commission’s recent crackdown was led by those most easily offended. They contend that wellorganized groups, such as the Parents’ Television Council and Morality in Media, alert their members to objectionable programs and encourage them to complain. As a result, the number of complaints has risen sharply, from 111 in 2000 to 140,000 in 2002 to more than half a million in the first four months of 2004 alone. These complaints might be influencing FCC policy. Although Chairman Powell has denied that his agency is swayed by public pressure, he has also said, “And, so


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FCC Chairman Michael Powell was at the center of the controversy surrounding the halftime show during Super Bowl XXXVIII. While Powell expressed outrage at what he called a “classless, crass, and deplorable stunt,” critics suggest that he used the indecency issue to divert attention away from his efforts to ease restrictions on media ownership.

you know, it’s democracy, the squeaky wheel gets the oil. There is that tendency in our system to be focused on the part making all the noise.” 29 If the number of complaints determines what the Commission investigates, then advocacy groups are exercising what First Amendment lawyers call a “heckler’s veto,” and the indecency rule might end up silencing the least popular programs rather than those most harmful to young people. Nor does a large number of complaints necessarily mean that a program is “patently offensive,” another criterion the Commission must apply in an indecency case. For example, the hundreds of thousands of complaints about the Super Bowl halftime show represented a fraction of one percent of the total


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audience. It is reasonable to assume that many, if not most, viewers were not offended. • Does the “patently offensive” standard make it too easy for a small minority to take shows off the air?

Finally, some observers charge that lawmakers exploit indecency for political advantage. In his 1996 State of the Union Address, President Clinton asked Congress to pass a law requiring that televisions be equipped with a V-chip, a device that “reads” program ratings and blocks unsuitable programs. In 2000, Democratic candidate Al Gore made the marketing of violent entertainment a campaign issue. After Super Bowl XXXVIII, Frank Rich of The New York Times observed, “While the current uproar over broadcast indecency is ostensibly all about sex, it is still all about politics, especially in an election year when a culture war rages.” 30

The Legal Basis for the Indecency Rule Is Faulty Although the Supreme Court upheld the indecency rule in Pacifica, some legal experts believe that the decision was flawed then and is even more flawed today. One objection to Pacifica is that “spectrum scarcity,” the decades-old justification for greater regulation of the airwaves, does not exist. Some, like appeals court judge Robert Bork, have argued that the airwaves are no more “scarce” than other means of communication. According to Bork, “All economic goods are scarce, not least the newsprint, ink, delivery trucks, computers, and other resources that go into the production and dissemination of print journalism.” 31 Others argue that even if there are more would-be broadcasters than frequencies, such scarcity does not justify regulating broadcasts. During the legal battle over the indecency rule, appeals court judge David Bazelon wrote, “Although scarcity has justified increasing the diversity of speakers and speech, it has never been held to justify censorship.” 32


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From the Bench Child Pornography and Technology: New York v. Ferber and Ashcroft v. Free Speech Coalition There are four categories of sexually oriented material that the government may regulate: obscenity, pornography that is harmful to minors, indecency, and child pornography. In the case of child pornography, the government’s interest in suppressing it is so strong that it is against the law to possess it, even in one’s home. In New York v. Ferber, 458 U.S. 747 (1982), the Supreme Court ruled that child pornography need not be obscene in order to be illegal. In this case, Paul Ferber, the owner of a Manhattan bookstore, sold an undercover police officer two films depicting young boys performing sex acts. Ferber was charged with violating §263.15 of the New York Penal Law, which made it illegal to distribute a depiction of someone younger than 16 engaging in sexual activity. Ferber argued that the law was unconstitutional because it applied to material that was not obscene. The case went to the Supreme Court, which unanimously upheld Ferber’s conviction. Justice Byron White wrote the Court’s opinion. He concluded that the government had more leeway to ban child pornography than obscenity in general. Justice White found that using young people in pornography was both physically and mentally abusive and that the government had a compelling interest in preventing such abuse. He also concluded that obscenity laws addressed different government interests than that of preventing young people from sexual exploitation. Both Justice White and several justices who wrote concurring opinions conceded that there were limits to child-pornography laws, suggesting that photographs in medical texts or National Geographic were protected by the First Amendment. Nevertheless, they concluded that §263.15 was aimed primarily at pornography and stated that they would review a prosecution involving material with social value when the time came. Until 1996, federal child-pornography laws were similar to the law upheld in Ferber. Concern over new forms of child pornography and their use by sexual


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predators led Congress to pass 18 U.S.C. §2256(8)(B), which banned sexual depictions of computer-generated images of young people. A challenge to that provision, along with several others, eventually reached the Supreme Court. In Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), six justices concluded that the ban on “virtual child pornography” was unconstitutional. Justice Anthony Kennedy wrote the majority opinion. He concluded that §2256(8)(B) “prohibits speech that records no crime and creates no victims by its production.” He rejected the government’s arguments in favor of the law. Although pedophiles might use virtual children to entice young victims or whet their own appetite for sex, he found that the mere tendency of speech to encourage unlawful acts was not enough of a reason for banning it. He also disputed the government’s argument that virtual images could make it harder to prosecute child pornographers, concluding instead that pornographers would use virtual children rather than risk the consequences of using real ones. Chief Justice Rehnquist, Justice Sandra Day O’Connor, and Justice Antonin Scalia argued that a ban on virtual child pornography would be constitutional as applied to images that were “virtually indistinguishable” from real children, agreeing with the government that such images could make it impossible to prosecute child pornographers. Justice Clarence Thomas, who believed that a ban on virtual child pornography was unconstitutional, stated that he would change his mind if technology allowed the creation of virtual children that could not be told apart from real children.

Some experts also question Pacifica’s conclusion that the broadcast media are “invasive.” They point out that a person must take affirmative steps to turn on a television or radio set and tune in a station and that this individual can turn off a broadcast found to be offensive. They also dispute the Court’s assertion that indecent programs take viewers or listeners by surprise, maintaining it is common knowledge that personalities like Howard Stern talk about sex and ask off-color questions. Finally,


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they contend that the indecency rule does little to protect young people because they can use television sets to tune in indecent programs on cable stations, which are not subject to the rule.

Summary The broadcast indecency rule is so vague and overly broad that it keeps both young people and adults from accessing constitutionally protected programs. The rule’s unfairness is aggravated by uneven enforcement, including politically motivated crackdowns driven by small but powerful interest groups. Like other restrictions on speech, the indecency rule could be used to silence unpopular speakers, even political opponents. Some legal experts question the very basis for the rule, arguing that the Pacifica decision upholding it rests on outdated, even incorrect, assumptions about broadcast technology.

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The Broadcast Indecency Rule Should Apply to All Media n 1996, Congress passed the Communications Decency Act (CDA), which some describe as an attempt to extend the broadcast indecency rule to the Internet. In Reno v. American Civil Liberties Union, the Supreme Court concluded that while Congress had a compelling interest in protecting young people from online pornography, the CDA was too broad and also infringed on adults’ constitutional rights. The Reno decision disappointed those Americans who warned that online pornography was an even greater problem than indecent broadcasts. As author Donna Rice Hughes pointed out:

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Parents, institutions, and governments have never allowed minors to have unrestricted access to pornography on magazine racks, cable channels, satellite TV, or dial-a-porn.

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But now, through the Internet, many children, with few restrictions, are able to easily access for free both soft-core and hard-core pornography in their own homes.33

Indecent Material Is More Available Than Ever Those who favor extending the indecency rule to other media believe that pornography is more prevalent than ever. They contend that the “girlie” magazines at issue in Ginsberg were a far cry from today’s pornography, which is more explicit and easier to find. Pornography has reportedly grown into a $10 billion-a-year business, larger than the NFL, the NBA, and Major League Baseball combined. A lucrative pornography industry that aggressively markets to the public offends most Americans’ belief that sex should be treated with respect. As the Supreme Court observed: “The sum of experience . . . affords an ample basis for legislatures to conclude that a sensitive, key relationship of human existence, central to family life, community welfare, and the development of human personality, can be debased and distorted by crass commercial exploitation of sex.” 34 Many consider online pornography especially dangerous because it has spread so quickly. Arguing in favor of the Children’s Online Protection Act, Solicitor General Theodore Olson told the Supreme Court that he typed the words “free porn” into a search engine and found links to more than six million Websites. ProtectKids.com has compiled statistics on the prevalence of pornography on the Internet, finding that 60 percent of Website visits are sexual in nature. There are more than 1.3 million pornographic Websites offering 260 million Web pages, and the number of such sites increased by 2,000 percent from 1998 to 2003. Most commercial pornography sites offer free “teaser” images, and only a tiny percentage require proof of age. Furthermore, Internet pornography can be found by young people at home, in Internet cafes, and even in schools and libraries.

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• Should the government regulate Internet cafes the way it regulates liquor stores? Should there be a minimum age to enter one?

Decency advocates also believe that cable and satellite television are as intrusive as broadcast media and that the indecency rule should therefore be extended to them, because young people can easily access indecent programs on those media television. A recent study by the Parents Television Council found even more sex and violence on prime-time cable than on the networks. The PTC survey did not include pay cable channels, many of which offer a steady diet of indecent programs. Many experts, including FCC Commissioner Michael Copps, believe that when it comes to indecency, there is no practical difference between cable and broadcast television. As Copps has noted, “Eighty-five percent of homes get their television signals from cable or satellite. Most viewers, particularly children, don’t recognize the difference as they flip channels between broadcast stations and cable channels.” 35 Senator John Breaux (D-LA), who sponsored a bill that would extend the broadcast indecency rule to cable, however, has pointed out one practical difference. “Right now,” the Senator noted, “our legislation says, if the Janet Jackson incident happened on Monday Night Football, there will be a fine; if it happens Sunday night on ESPN, then nothing happens because that’s on cable.” 36

Indecency Is Harmful to Young People In 1986, the Attorney General’s Commission found that pornography was harmful to society because it encouraged people to violate standards of proper sexual behavior, offended unwilling viewers, and exploited sex for money. The Commission also concluded that pornography was especially harmful to young people. One reason is that it set a bad example: “For children to be taught by these materials that sex is public, that sex is


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commercial and that sex can be divorced from any degree of affection, love, commitment or marriage is the wrong message at the wrong time.” 37 The Commission also found that pornography undermined the role of parents in teaching their children about sex. It determined that “there are harms both to the children themselves and to notions of family control over a child’s introduction to sexuality if children learn about sex from the kinds of sexually explicit materials that constitute the bulk of this category of materials.” 38 The Commission’s report was issued years before the Internet became a mass medium. Many believe that the problem is worse today because online pornography is more harmful than print pornography. One reason is the vulnerability of young Internet users. Another, more ominous, problem involves sexual predators, who try to lure victims by showing them pornography and starting sex-related discussions in chat rooms. Child-protection expert Larry Magid has observed, “Teenagers are particularly at risk because they often use the computer unsupervised and because they are more likely than younger children to participate in online discussions regarding companionship, relationships, or sexual activity.” 39 The greater availability of pornography, much of which is not obscene under the Miller test, has led many Americans to call for the passage and enforcement of laws regulating content that is harmful to minors. As Justice Antonin Scalia explained, “The more narrow the understanding of what is ‘obscene,’ and hence the more pornographic what is embraced within the residual category of ‘indecency,’ the more reasonable it becomes to insist upon greater assurance of insulation from minors.” 40 It is hard enough for parents to keep their children from tuning in indecent broadcasts; it is harder still to keep them from accessing online pornography. For that reason, many (continued on page 54)

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From the Bench “Channeling” Indecent Broadcasts: Action for Children’s Television v. Federal Communications Commission The Pacifica decision, which held that the broadcast indecency rule was constitutional, was just the beginning of a long-running controversy known as the Action for Children’s Television case. The issues in that case were whether the rule was narrowly tailored to protect young people, and when, if at all, indecent broadcasts should be allowed. In Action for Children’s Television v. Federal Communications Commission, 58 F.3d 654 (D.C. Cir. 1995), cert. denied, 516 U.S. 1043 (1996), the Court of Appeals for the District of Columbia Circuit voted 7–4 to uphold an act of Congress ordering the FCC to “channel” indecent broadcasts to “safe harbor” hours between 10 P.M. and 6 A.M. Judge James Buckley wrote the majority opinion. He first concluded that the indecency rule did not violate the First Amendment. He rejected the argument that the rule was vague, finding that the definition of “indecency” was essentially the same as that upheld in Pacifica. He next found that it was still proper to hold the broadcast media to a higher standard: Despite the increasing availability of other means of receiving television, such as cable (which is not immune to the concerns we address today) . . . there can be no doubt that the traditional broadcast media are properly subject to more regulation than is generally permissible under the First Amendment. Turning to the government’s justification for the indecency rule, Judge Buckley found that the category of what was legally obscene had narrowed over the years, and therefore, it was more important than ever to protect young people from non-obscene but harmful material. He also found that the rule promoted parents’ interest in supervising their children’s viewing and listening habits as well as the government’s independent interest in protecting young citizens. Judge Buckley then concluded that the indecency rule was the least restrictive means of protecting young people and that it was reasonable to


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conclude that the safe-harbor period corresponded to those hours when the audience consisted mostly of adults. Finally, even though the indecency rule inconvenienced some adults, Judge Buckley found the inconvenience necessary to protect young audiences. Chief Judge Harry Edwards dissented. He argued, among other things, that the time had come to overrule Pacifica. His principal objection was that it led to an irrational distinction between broadcast and cable television. “There is no ban between 6 A.M. and midnight imposed on cable,” he wrote. “Rather, the Government relies on viewer subscription and individual discretion instead of regulating commercial cable.” Edwards also rejected Pacifica’s rationale for the indecency rule, arguing that broadcast television was neither invasive nor uniquely available to young audiences. He contended that “spectrum scarcity,” the original reason for regulating broadcasters, did not justify censorship. Chief Judge Edwards maintained that the government had not provided proof that indecent broadcasts were harmful to young viewers or that large numbers of unsupervised young people tuned in to them during the day. He also contended the government had not shown that the indecency rule was the least restrictive means of protecting young audiences, noting that it had not considered such alternatives as “scrambling” adult programs or equipping television sets with the V-chip. Finally, he argued that the indecency rule interfered with, rather than promoted, parental control: Simply put, among the myriad of American parents, not every parent will decide, as the Commission has, that the best way to raise its child is to have the Government shield children under 18 from indecent broadcasts. Furthermore, not every parent will agree with the Commission’s definition of indecency, nor whether it is appropriate in some contexts, nor at what age their own children may be exposed to such programming.


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believe that the government has an obligation to step in. Senator James Exon, who sponsored the Communications Decency Act, argued: Parents, schools, and a responsible industry still must be involved in the effort to make the Internet safer. But does anyone really think that parents can monitor their children all of their waking hours? We need the added deterrent of law so that those who would pervert the network will think twice. 41

Despite recent setbacks in court, decency advocates point out that the Supreme Court has suggested it would uphold a narrowly drawn law regulating online pornography.

Traditional Age Restrictions Are No Longer Effective In years past, pornography was available only in physical form, such as books, magazines, or videocassettes. It was therefore easier to keep young people from accessing pornography because a customer had to make face-to-face contact with an employee in order to buy it. Any business that failed to enforce age restrictions risked being the target of a “sting” operation and charged with a crime. The system was not foolproof—then, as now, determined young people could get around age restrictions—but pornography was less available than it is today. • Do you favor a “cyber ID” for proof of age? Would it be too easy to counterfeit or steal such an ID?

On the Internet, content has no physical existence. Once it is posted, users around the world can not only access it but also share it with others. It is also more difficult to enforce age restrictions online. For example, the owner of an adult Website cannot challenge a young-looking user or recognize fake or


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stolen identification. In addition, age-verification technology is relatively primitive. One reason the Supreme Court struck down the CDA was that the technology used to “card” Internet users also prevented adults from accessing material they had a right to see. Television presents a similar problem. R-rated movies, and even unrated “adult films,” can be watched by cable subscribers’ unsupervised children (as well as their friends) who do not have to provide proof of age in order to see them. The difficulty of checking ages does not diminish the government’s interest in controlling pornography. If anything, it makes that interest even stronger. Senator Exon argued: If someone let a child browse freely through an adult bookstore or an X-rated video arcade, I suspect and hope that most people would call the police to arrest that person. Yet these very offenses occur every day in America’s electronic neighborhoods.42

Supporters of Internet pornography legislation also contend that nonregulatory solutions have not worked. Even though filtering software designed to block access to adult Websites has been available for years, many parents neither buy filters nor use parental controls offered by their Internet service providers. Adding to the problem is that young people can defeat filters (there are Websites that show them how) or access the Internet from unfiltered locations. Furthermore, most parents do not use technology designed to block offensive television programs. Although federal law requires cable operators to offer their subscribers a “lockbox” allowing them to block specific channels, it was recently found that less than one percent of subscribers had asked for one. Another federal law requires most television sets manufactured since January 2000 to have a V-chip; however, a recent study found that 80 percent of parents were (continued on page 58)

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From the Bench The Legal Battle Over COPA: Ashcroft v. American Civil Liberties Union After the Supreme Court struck down the Communications Decency Act, Congress passed the Children’s Online Protection Act (47 U.S.C. §231), a narrower measure intended to address the Court’s objections to CDA. COPA governed material that was “harmful to minors” rather than “indecent,” was directed at to those distributing pornography for “commercial purposes,” and applied only to content on the World Wide Web. Because of a lengthy court battle involving its constitutionality, COPA has never been enforced. After COPA became law in 1998, civil-liberties groups sued to stop it from taking effect. The District Court found that there were less restrictive alternatives to legislation—especially filtering technology— and concluded that COPA would likely be found unconstitutional. It ordered the government not to enforce the law. The Court of Appeals for the Third Circuit agreed that COPA was probably unconstitutional, but its decision was based on an entirely different ground. Its definition of “harmful to minors,” in terms of “community standards,” could give the most conservative communities veto power over what the rest of the country could see online. The government appealed to the Supreme Court, which, in Ashcroft v. American Civil Liberties Union, 535 U.S. 564 (2002), ruled that COPA’s use of community standards was not, in itself, reason to hold the law unconstitutional. It sent the case back to the appeals court to decide whether COPA was unconstitutional for other reasons. Reviewing COPA a second time, the appeals court again found it unconstitutional. It determined that the law’s definitions of “harmful to minors” and “commercial purposes” were too broad. Furthermore, its age-verification requirement burdened adults, and less restrictive alternatives, including filtering software and domain-name “zoning,” would be as effective. The appeals court also reaffirmed its conclusion that COPA’s use of community standards could give too much power to conservative communities. The government again appealed to the Supreme Court, which, in Ashcroft v. American Civil Liberties Union, No. 03–218 (U.S. Sup. Ct., June 29, 2004),


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sidestepped the issue of whether COPA was constitutional. Instead, a fivemember majority sent the case back to the District Court, with directions to hold a trial focusing on whether filtering was an effective alternative to legislation. That decision left open the possibility that COPA might be held constitutional. Justice Anthony Kennedy wrote the majority opinion. He suggested that filtering technology might be more effective than COPA for a number of reasons. Kennedy cautioned, however, that there was not enough evidence about filtering and that it had been five years since the District Court had considered the issue. He wrote: “More and better filtering alternatives may exist. . . . Indeed, we know that after the District Court entered its factfindings, a congressionally appointed commission issued a report that found that filters are more effective than age verification screens.” Justice Stephen Breyer dissented. In an effort to save the law, he read it narrowly, concluding that it was directed only at those in the business of distributing pornography and that it applied only to a narrow category of material that was obscene with respect to minors—an interpretation that protected works of art and information about sexual health. Justice Breyer added that COPA did not ban harmful-to-minors material; it only required that it be hidden from sight and made available only to those who could prove they were at least 17. He maintained that an age-verification requirement placed only a modest burden on adults, which was outweighed by the government’s interest in protecting young people. Justice Breyer rejected the notion that filtering software was a less restrictive alternative, finding it unreliable and too expensive for some families. He added that young people would still be able to access pornography from unfiltered terminals. Finally, he expressed frustration over the Court’s rigid standard of review for restrictions on content, writing, “If this statute does not pass the Court’s ‘less restrictive alternative’ test, what does? If nothing does, then the Court should say so clearly.”


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unaware their set had the chip and that less than 10 percent actually used it. Additionally, it has been reported that many parents do not understand the rating system developed by broadcasters to identify programs that might be unsuitable for their children. • If you were a parent, would you spend $40 for filtering software? Would you take the time to understand how a V-chip works?

Lack of Enforcement Has Made the Problem Worse A July 2004 study of adult radio listeners conducted by Paragon Media Strategies found that 71 percent agreed there was “too much indecent material in the media today,” and 84 percent agreed there was “more indecent material in the media” than five years ago. Despite widespread public concern over indecency, advocacy groups accuse authorities of having done little to stop it. They contend that the failure to crack down on pornography, especially on the Internet, has created the impression that “anything goes,” and they urge the government to reverse that trend, starting by targeting those who profit from pornography. In their view, passing and enforcing laws such as COPA will make the pornography business less attractive and discourage people from pursuing such business. Advocates also blame the courts for being too tolerant of indecency. They accuse judges of emphasizing the rights of a few adults who want unrestricted access to pornography and ignoring the welfare of young people who can easily find it. They argue in particular that the Supreme Court’s strict-scrutiny test makes it almost impossible to uphold indecency laws. For example, in 1996, Congress passed a law requiring cable operators either to scramble “adult” channels so they could not be seen by nonsubscribers or


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to limit adult programs to the safe-harbor hours between 10 P.M. and 6 A.M. In United States v. Playboy Entertainment Group, 529 U.S. 803 (2000), however, the Supreme Court found that law unconstitutional because a less restrictive alternative—namely, asking one’s cable operator for a lockbox—was available. Justice Stephen Breyer, who voted to uphold the law, argued, “By finding ‘adequate alternatives’ where there are none, the Court reduces Congress’ protective power to the vanishing point. This is not what the First Amendment demands.” 43 • Is it fair that courts require the government to show that there are no alternatives to indecency laws?

Many also believe that courts exaggerate the technological burdens of keeping pornography away from young people. A federal appeals court judge, who voted to uphold a Virginia law extending pornography restrictions to the Internet, argued: In the world of Web-based commercial pornography, “electronic screens” requiring credit card or age verification devices are commonplace. So, too, are “teasers,” hardcore pornography strategically placed in front of such screens. All commercial pornographers need to do to abide by Virginia law is to move these pre-existing “screens” so that such screens appear before pornographic teasers are displayed.44

Finally, some Americans, like Morality in Media president Robert Peters, believe that an unregulated Internet will be less useful to society than an Internet where indecency is regulated. Rather than expose themselves to online dangers, Peters warns, people will choose safe havens like they did during medieval times. If that happens, the Internet of the future may resemble a series of isolated fortresses rather than the wide-open marketplace of ideas its designers envisioned.

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Newton Minow’s “Vast Wasteland” Speech When John F. Kennedy became president, he appointed a lawyer named Newton Minow to head the Federal Communications Commission. At the time, both the Commission and the broadcast industry were plagued by scandals. On May 9, 1961, Minow addressed the National Association of Broadcasters. Although many of his remarks dealt with technology we now take for granted, portions of his speech are timely today. After reminding broadcast executives that their field was a form of public service, Minow challenged them to see for themselves what they were offering viewers: I invite you to sit down in front of your television set when your station goes on the air and stay there without a book, magazine, newspaper, profit and loss sheet or rating book to distract you—and keep your eyes glued to that set until the station signs off. I can assure you that you will observe a vast wasteland. You will see a procession of game shows, violence, audience participation shows, formula comedies about totally unbelievable families, blood and thunder, mayhem, violence, sadism, murder, western bad men, western good men, private eyes, gangsters, more violence, and cartoons. And, endlessly, commercials—many screaming, cajoling, and offending.* Minow questioned whether ratings should decide what was shown, arguing that they indicated the size of the audience but not how intensely viewers reacted to a program or what they might have preferred. He emphasized that ratings should not determine what they showed to children:

Summary Today’s pornography industry aggressively markets its product, especially on the Internet, and it is easier than ever for people of all ages to access it. Exposure to pornography is harmful for a number of reasons, and courts have recognized the government’s compelling interest in protecting young people


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[M]ost young children today, believe it or not, spend as much time watching television as they do in the schoolroom. I repeat—let that sink in—most young children today spend as much time watching television as they do in the schoolroom. It used to be said that there were three great influences on a child: home, school, and church. Today, there is a fourth great influence, and you ladies and gentlemen control it. More than 40 years before the latest indecency controversy, Minow rejected the argument that FCC’s standards were too vague. He also reminded broadcasters of the power of their medium: Some of you may say,“Yes, but I still do not know where the line is between a grant of a renewal and the hearing you just spoke of.” My answer is: Why should you want to know how close you can come to the edge of the cliff? What the Commission asks of you is to make a conscientious, good-faith effort to serve the public interest. . . . The power of instantaneous sight and sound is without precedent in mankind’s history. This is an awesome power. It has limitless capabilities for good—and for evil. And it carries with it awesome responsibilities, responsibilities which you and I cannot escape. *

The “Vast Wasteland”speech appears in Minow, Newton N. and Craig L. LaMay, Abandoned in the Wasteland: Children, Television, and the First Amendment. New York, NY: Hill and Wang, 1995.

from it. Decency advocates believe that the government has made the problem worse by tolerating pornography for too long. They also accuse the courts of paying too little attention to the interests of young people and their parents and applying too strict a standard to laws regulating pornography, such as those requiring adult Websites to demand proof of age or requiring cable operators to limit access to indecent programs.


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Indecency Standards Should Be Abolished for All Media here are two ways to put broadcast television and radio on the same footing as other media. One is to recognize that the indecency rule is flawed and do away with it. The other is to conclude that society’s interest in protecting young people is so strong that the rule should be extended to other media. The latter approach not only raises serious constitutional questions but could create practical problems as well. As District Judge Lowell Reed, who barred the government from enforcing the Children’s Online Protection Act, observed, “Indeed, perhaps we do the minors of this country harm if the First Amendment protections, which they will with age inherit fully, are chipped away in the name of protection.” 45

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Indecency Laws Endanger Free Speech Extending the broadcast indecency rule to other media, especially

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the Internet, would have a chilling effect on constitutionally protected speech. To begin with, laws such as COPA impose penalties after the fact and thus force a Website operator to predict whether a jury will find his content “harmful to minors” and whether he took steps to keep young people from seeing it. In addition, he cannot argue that he made a reasonable effort to check a visitor’s age until after he is charged with a violation. Given the legal consequences, Website operators are likely to self-censor. A related problem with a proof-of-age requirement is that some Website operators cannot afford to install ageverification software, leaving them no alternative but to close their sites down. Some believe that the sites most likely to disappear are those owned by individuals, nonprofit organizations, and groups advocating unpopular causes—the very sites that have made the Internet a forum for robust discussion. Although the government has argued that COPA is aimed only at pornography merchants, opponents claim that its language is broad enough to include millions of Websites having nothing to do with the pornography business. “Community standards” raise another First Amendment concern. COPA’s definition of “harmful to minors” is modeled after the Miller obscenity test. The Miller Court ruled that whether material appeals to one’s “prurient interest” and is “patently offensive” must be judged by a local—not a national— standard, because “it is neither realistic nor constitutionally sound to read the First Amendment as requiring that the people of Maine or Mississippi accept public depiction of conduct found tolerable in Las Vegas, or New York City.” 46 Ironically, the same local standards that promoted free speech in 1973 could endanger it today. In 2002, Justice Stephen Breyer observed that applying local standards to the Internet “would provide the most puritan of communities with a heckler’s veto affecting the rest of the Nation.” 47 Similar problems would arise if the broadcast indecency rule were extended to cable and satellite television. Viewers in a conservative community might

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argue that a program is “patently offensive” and demand that the FCC start an indecency investigation. Another problem with indecency restrictions is that they often fail to distinguish between older teens and younger children. That is significant because the broadcast indecency rule—along with some definitions of “harmful to minors”—is broad enough to include material, such as information on sexual health, that has serious value for older teenagers. Courts have ruled that although older teenagers are still minors, they still have some First Amendment rights. • Are older teenagers mature enough to access sexual health information online, even over their parents’ objections?

Finally, opponents insist that there are less restrictive alternatives to legislation, especially legislation that broadly restricts speech. On the Internet, one promising alternative is filtering software, which shifts control of the Internet from the government to individual users such as parents. Although the Supreme Court stopped short of finding COPA unconstitutional, it suggested that filtering would be preferable to legislation. “COPA,” the Court wrote, “presumes that parents lack the ability, not the will, to monitor what their children see. By enacting programs to promote use of filtering software, Congress could give parents that ability without subjecting protected speech to severe penalties.” 48

Indecency Laws Are Unworkable and Unnecessary Opponents of laws such as COPA argue that they are clumsy and expensive. They maintain that even if age-verification software is effective, it requires adult visitors to identify themselves— and even provide personal information—in order to access non-obscene material. Doing so could expose them to unwanted advertising, credit card fraud, or identity theft. Even more significantly, the Supreme Court has in the past struck down laws requiring adults to identify themselves in order to receive unpopular speech, such as “Communist propaganda.”


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• Is it fair to require adults who want to look at pornography sites to supply a credit card number as proof of age?

Another shortcoming of laws against online indecency is that they do not govern content originating from other countries. By one estimate, 40 percent of online pornography is found on overseas Websites. There are serious doubts whether those sites are subject to American law or even whether their operators can be found. Some also fear that anti-indecency laws could lead to a “Fortress America” mentality that will chill speech worldwide because foreign Websites will be forced either to self-censor to comply with American laws or make their content unavailable to users in this country. Those who believe that the indecency rule should not be extended to cable and satellite television raise the same arguments as those who oppose the indecency rule itself. The definition of “indecency” is vague, and regulating indecent speech burdens adults’ First Amendment rights. Opponents also maintain that there are other means of keeping young people from tuning in to sexually oriented broadcasts, including the V-chip, cable lockboxes, and program ratings—none of which existed when the Supreme Court upheld the indecency rule in 1978. Additionally, opponents argue that enforcing restrictions on material that is merely “indecent” or “harmful to minors” diverts lawenforcement resources from hard-core pornography. They add that indecency restrictions invite court challenges and point out that laws against obscenity and child pornography, as well as stalking, sexual assault, and sex with underage partners, have been found constitutional.

Indecency Laws Interfere With Families’ Rights Opponents of laws aimed at indecency also contend that they substitute the government’s judgment for that of parents. In barring the government from enforcing COPA, Judge Reed stated:

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[T]he decision a parent must make is comparable to whether to keep sexually explicit books on the shelf or subscribe to adult magazines. No constitutional principle is implicated. The responsibility for making such choices is where our society has traditionally placed it—on the shoulders of the parent.49

Unlike the law upheld in Ginsberg, COPA makes no exception for young people who access adult content with their parents’ permission—even though values differ from one set of

From the Bench Communications Decency Act Found Unconstitutional: Reno v. American Civil Liberties Union Concern over Internet pornography led Congress to pass the Communications Decency Act.One provision of the CDA, 47 U.S.C.§223(a)(1), made it a crime to transmit indecent materials knowing that the recipient was under 18 years of age. Another provision, 47 U.S.C. §223(d), made it a crime to send or display patently offensive materials describing sexual or bathroom functions in a manner that was available to those under 18. A person charged with a violation could argue in court that he took reasonable steps to keep underage visitors from accessing his material or that he required proof of age, such as a credit card or an adult identification code. A coalition of civil liberties groups and Internet content providers challenged the CDA’s indecency provisions (provisions dealing with obscenity and child pornography were not challenged). The case quickly reached the Supreme Court, which, in Reno v. American Civil Liberties Union, 521 U.S. 344 (1997), found them unconstitutional. Justice John Paul Stevens wrote the majority opinion. He rejected the argument that Internet speech had limited First Amendment protection. “The Internet,” he wrote, “is not as invasive as radio or television. The District Court specifically found that communications over the Internet do not invade an individual’s home or appear on one’s computer screen unbidden. Users seldom encounter content ‘by accident.’” Justice Stevens concluded that the CDA’s indecency provisions violated the First Amendment because its broad definitions of “indecent” and “patently offensive,” combined with the possibility of criminal punishment, could chill constitutionally protected speech such as discussions of birth control or gay sex.


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parents to another. In his dissenting opinion in Pacifica, Justice William Brennan argued: As surprising as it may be to individual Members of this Court, some parents may actually find Mr. Carlin’s unabashed attitude towards the seven “dirty words” healthy, and deem it desirable to expose their children to the manner in which Mr. Carlin defuses the taboo surrounding the words.50

He did, however, suggest that a narrower law, modeled after the harmful-to-minors law upheld in Ginsberg, stood a better chance of being found constitutional. Justice Stevens further concluded there was no effective technology that would keep those under 18 from accessing adult content online—especially via email, message boards, and chat rooms. Even assuming that effective ageverification technology existed, he found that it would be prohibitively expensive, especially for noncommercial providers. Finally, Justice Stevens concluded the government had failed to show that less restrictive measures would not protect young people from pornography: The arguments in this Court have referred to possible alternatives such as requiring that indecent material be “tagged” in a way that facilitates parental control of material coming into their homes, making exceptions for messages with artistic or educational value, providing some tolerance for parental choice, and regulating some portions of the Internet—such as commercial web sites—differently than others, such as chat rooms. Justice Sandra Day O’Connor dissented in part. She approved, in principle, the creation of “adult zones” on the Internet, pointing out that laws barring young people from establishments such as pool halls were constitutional. Although she acknowledged that technology required to create such zones might be developed in the future, she concluded it was not yet possible to exclude underage visitors from portions of the Internet. Nevertheless, she did conclude that the CDA was constitutional to the extent that it prohibited a person from knowingly transmitting indecent material to minors.


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Opponents also contend that indecency laws do more harm than good because they make young people less able to handle adult situations when they come of age. Author Thomas Hine has contended, “If [teenagers] are treated as young adults and allowed to participate in the economic, political, intellectual, and even sexual aspects of life, we might find less, rather than more, irresponsible and high-risk behavior.” 51 Some also argue that laws making sexually oriented material off-limits to young people gives it the same “forbidden fruit” status as alcohol and tobacco, making it all the more appealing. Others suggest that indecency laws give parents an excuse to avoid teaching their children about sexuality and other difficult topics. Finally, some believe that our society has imposed too many legal restrictions on young people in a misguided effort to protect them. Especially after the Columbine High School shootings, schools have censored what young people see, hear, and even write. Pulitzer Prize-winning author Michael Chabon has argued against such censorship, stating that free speech should not be blamed for society’s problems: When, once in a great while, a teenager reaches for an easy gun and shoots somebody or himself, we tell ourselves that if we had only censored his journals and curtailed his music and video games, that awful burst of final ugliness could surely have been prevented. As if art caused the ugliness, when of course all it can ever do is reflect and, perhaps, attempt to explain it.52

• Does our society allow young people too much emotional release? Too little?

Censorship extends beyond schools. In some communities, lawmakers have declared certain motion pictures, video games, and even trading cards “harmful to minors” in an effort to protect young people from exposure to sex and violence. Opponents of these measures warn that they erode First Amendment rights, especially those of young Americans.


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Censorship Is Outmoded Some First Amendment supporters believe that it is time to repeal obscenity laws altogether, at least with respect to adults. One of their arguments is that such laws are by-products of old religious taboos. George Carlin, who has poked fun at those taboos for years, observed, “Language can be a villain thanks to religious superstitions about the human body, which goes back to shame and fear and guilt. We’re taught the human body is bad, don’t touch yourself and don’t touch her. These things now have a curse on them.” 53 There have always been religious overtones to laws against pornography. America’s earliest obscenity prosecutions were brought under laws against blasphemy, and the publication found obscene in Hicklin was an anti-Catholic political tract. During the late nineteenth century, anti-obscenity crusader Anthony Comstock believed that pornography should be illegal because it was a trap set by Satan for the unwary. Comstock, who was deputized by the Post Office to catch pornography distributors, also relied on obscenity laws to advance his own religious agenda, using them to suppress literature about birth control and abortion. Even today, the strongest supporters of anti-indecency efforts are conservative religious organizations. Another objection to censorship is that it targets artists, especially those whom the public finds threatening. Over the years, obscenity laws have been used against literary classics such as James Joyce’s Ulysses; jazz musicians who were accused of corrupting young people; 1960s comedian Lenny Bruce, whose profanity-filled monologues attacked authority figures; and rappers 2 Live Crew and Sarah Jones. Some even question the assumption that exposure to pornography is harmful to young people, contending that some experience “catharsis,” a healthy release of pent-up psychological tensions. Others dispute the notion that people who watch sexual scenes imitate them. They point out, for instance, that although Japanese men watch some of the world’s most gruesome pornography, the rate of sexual assaults in that country is

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From the Bench State Regulation of Indecency: American Library Association v. Pataki and PSINet v. Chapman Geography has little meaning online. As a result, efforts to extend “harmful-tominors” laws to the Internet have run into serious constitutional problems. The following two cases are typical. New York. After a highly publicized case involving a Seattle man who traveled across the country to have sex with a girl he had been corresponding with online, state lawmakers passed §235.21(3) of the New York Penal Law, which made it a felony to disseminate harmful-to-minors material to a minor over the Internet. In American Library Association v. Pataki, 969 F. Supp. 160 (S.D.N.Y. 1997), however, District Judge Loretta Preska ruled that §235.21(3) violated the Commerce Clause of the Constitution. She first determined that there was no way for a person to make online content unavailable to New Yorkers and that Internet traffic was “interstate commerce.” Judge Preska then found three reasons why §235.21(3) interfered with interstate commerce. First, it imposed New York law on conduct that took place entirely outside the state. Second, it seriously burdened speech, including that of people thousands of miles away, while doing little to protect young New Yorkers from sexual abuse. Third,“the Internet is one of those areas of commerce that must be marked off as a national preserve to protect users from inconsistent legislation.” Virginia. Many states have laws making it illegal for bookstore owners to display harmful-to-minors material where underage customers can see it. In Virginia, lawmakers extended their display law (§18.2-391 of the Virginia Code) to the Internet. In PSINet, Inc. v. Chapman, 362 F.3d 227 (4th Cir. 2004), however, a federal appeals court ruled the Virginia law unconstitutional. Judge James Spencer, writing for the 2–1 majority, found that it was too broad and interfered with

relatively low. Finally, some believe that pornography laws aim at the wrong target because they criminalize speech that might lead to violence rather than the violence itself.

Summary Many believe that the broadcast indecency rule should be abolished and that restrictions on indecency should be done


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adults’ First Amendment rights. Additionally, he found an important difference between bookstores and the Internet: Unlike sexually explicit materials disseminated in brick and mortar space, electronic materials are not distributed piecemeal. The Internet uniformly and simultaneously distributes its content worldwide . . . there may some day be sufficient technology to render this statute constitutional. However, in light of current technology, this statute cannot be reasonably construed to meet both First Amendment and Commerce Clause challenges. Judge Spencer concluded there was no way that §18.2-391 could avoid violating the Commerce Clause. As written, it imposed Virginia’s standards on out-of-state content providers. Even if it were read narrowly to apply only to sites run by instate pornography merchants, the minimal protection it gave Virginia’s young people would not be worth the burden it placed on commerce. Judge Paul Niemeyer dissented. He maintained that it was not unreasonably burdensome to require Website operators to ask for proof of age, such as a credit card number, password, or PIN code. He added: [J]ust as booksellers could create zones in their bookstores limited to adult materials and could restrict the perusal and sales of those books to adults, websites can create zones on the Internet limited in access to adults. No adult would, through this process, be denied access to constitutionally protected speech. Judge Niemeyer also maintained that §18.2-391 did not violate the Commerce Clause, arguing that requiring a Website operator to place harmful-to-minors materials behind an electronic screen was a minimal burden. Finally, he concluded, “If this narrowly tailored statute does not survive strict scrutiny, then the conclusion must be drawn that States have no alternative but to abandon efforts to regulate Internet-based pornography deemed harmful to juveniles.”

away with in all media. They argue that extending the rule to nonbroadcast media would violate the First Amendment and involve the government in decisions traditionally made by families. In addition, they contend that efforts to regulate indecency, especially on the Internet, raise practical problems and that regulation is less effective than alternatives such as cable lockboxes and filtering software. Finally, some Americans consider anti-indecency laws obsolete because they give religious beliefs the force of law.


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Government Should Encourage the Rating and Filtering of Content fter the Supreme Court overturned the Communications Decency Act, the government pursued two alternatives. One was the Children’s Online Protection Act, which lawmakers believed had a better chance of being found constitutional. The other was to encourage voluntary rating and filtering, which would give parents and others in charge of young people more control over their computers. Some consider rating and filtering alternatives to anti-indecency laws whereas others view them as part of a comprehensive strategy in which legislation plays a key role.

A

How Rating and Filtering Work Rating entails a human reviewer evaluating a Website and making a judgment about its appropriate age range. The evaluation might also include specific warnings about content,

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such as coarse language or references to drug use that visitors might object to. There are several approaches to rating Websites. One is “self-rating,” which relies on site owners to suggest an appropriate age range and warn of potentially objectionable material. Another is “industry rating,” in which a group of Website owners establish a panel that assigns ratings. This approach is used by the motion picture, broadcast, and video game industries. Still another is “third-party rating,” in which independent groups or private companies evaluate Websites and either assign them ratings or compile lists of acceptable or unacceptable sites. It is left up to individual users to decide whose ratings to trust. To make rating easier and more consistent, the World Wide Web Consortium, formed by the leading companies in the Internet industry, has developed the Platform for Internet Content Selection (PICS). The purpose of PICS is to enable Web browsers and filtering software to recognize ratings and to block access to unfavorably rated sites. PICS does not choose rating systems or rate sites; those tasks are left to others. Filtering entails installing software that recognizes objectionable Websites and blocks a user’s access to them. Filtering software blocks access to sites identified by the vendor or a third party, limits access to a “clean list” of pre-selected sites, or “reads” site ratings and blocks access to unfavorably rated sites. Because only a fraction of Websites are reviewed by humans, most filtering products also rely on computer programs that block access to sites with words associated with pornography (such as “sex”) or other potentially objectionable content (such as “Ecstasy”). Most products allow the user to select the categories to be blocked, choose between highly restrictive and minimally restrictive filtering, or disable the filter entirely. • Do rating systems discriminate against novel or controversial content?

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Rating and Filtering Minimize First Amendment Concerns Because rating and filtering are conducted by private companies, they largely avoid First Amendment issues. The Supreme Court recently explained: Under a filtering regime, adults without children may gain access to speech they have a right to see without having to identify themselves or provide their credit card information. Even adults with children may obtain access to the same

From the Bench Requiring Filters in Libraries and Schools: United States v. American Library Association In an effort to keep young people from viewing pornography at library terminals, Congress passed the Children’s Internet Protection Act, which requires libraries to install filtering software as a condition of receiving federal funds for Internet access. The American Library Association challenged CIPA’s constitutionality. The case reached the Supreme Court, and, in United States v. American Library Association, 539 U.S. 194 (2003), a 6–3 majority voted to keep the law in force. Chief Justice William Rehnquist, writing on behalf of four justices, concluded that CIPA was a proper exercise of Congress’ spending power because it did not induce libraries to violate patrons’ First Amendment rights. He found that the government had broad discretion in deciding what content should be made available in the first place. He added that in the case of libraries, staff traditionally had broad discretion about what to acquire and that most libraries “already exclude pornography from their print collections because they deem it inappropriate.” The Chief Justice also concluded that filtering was less restrictive than other measures, such as limiting Internet access to known worthwhile sites or looking over patrons’ shoulders to make sure they were not looking at pornography. He added that while filters “overblocked,” they raised no constitutional concerns because if an adult asked to disable a filter, the library staff had to do so, no questions asked. Justice Anthony Kennedy concurred. He agreed that CIPA was not unconstitutional as written but cautioned that constitutional problems would arise “if some libraries do not have the capacity to unblock specific Websites or to


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speech on the same terms simply by turning off the filter on their home computers. Above all, promoting the use of filters does not condemn as criminal any category of speech.54

Rating and filtering also avoid the problem raised by “community standards.” A person who favors strict controls on the Internet and a neighbor who opposes censorship can each use filtering technology to enforce his own standards without imposing them on the rest of the community. As the Commission on Child Online Protection found:

disable the filter or if it is shown that an adult user’s election to view constitutionally protected Internet material is burdened in some other substantial way.” Justice Stephen Breyer also concurred, arguing that the filtering requirement was constitutional because its objective was legitimate, filters were relatively cheap and effective, and no better alternatives existed. He shared Justice Kennedy’s concern, however, that local library rules might unreasonably restrict adults’ access to materials. Justice John Paul Stevens dissented. He argued that filtering underblocked, thereby creating a false sense of security; more importantly, filtering overblocked, depriving patrons of protected speech. He added that there were less restrictive alternatives to filtering, such as acceptable-use policies and policies that required young patrons to use terminals within sight of library staff. Justice David Souter also dissented. He contended that CIPA, as written, did not require library staff to honor an adult’s request to disable a filter. He also argued that installing a filter was different from a library’s decision not to acquire certain materials.“The proper analogy,” Souter wrote,“is either to buying a book and then keeping it from adults lacking an acceptable ‘purpose,’ or to buying an encyclopedia and then cutting out pages with anything thought to be unsuitable for all adults.” Souter also cited the American Library Association’s policy that “only the parent . . . may restrict his children—and only his children—from access to library materials and services.”


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Unlike one-way broadcast media, the Internet is inherently multidimensional and interactive. This interactivity may create new possibilities for Internet users to exercise greater control over the content they see online and for content producers to target their audience.55

The Supreme Court has also suggested that rating and filtering can protect young users from material not regulated by antipornography laws: First, a filter can prevent minors from seeing all pornography, not just pornography posted to the web from America . . . In addition, the District Court found that verification systems may be subject to evasion and circumvention, for example by minors who have their own credit cards . . . Finally, filters may be more effective because they can be applied to all forms of Internet communication, not just communications available via the World Wide Web.56

Even though rating and filtering are voluntary, some argue that even mandatory labeling—which they compare to health warnings on alcoholic beverage labels—would be constitutional. In April 2004, the Federal Trade Commission adopted a rule requiring senders of sexually oriented emails to label them as such. Defending the rule, the FTC stated: The First Amendment raises no impediment [a rule] that will enable a person to filter out a class of objectionable commercial communications, or in the alternative, to receive accurate labeling information about the content of the email message before being confronted with such content.57

Finally, the Supreme Court has ruled that using filters in schools and libraries is consistent with the First Amendment. In United States v. American Library Association, 539 U.S. 194


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(2003), it upheld a law requiring schools and libraries to install filtering software as a condition of receiving federal funds for Internet access. In doing so, the Court found that filters did not interfere with adults’ constitutional rights: “[T]he Act allows libraries to permit any adult patron access to an ‘overblocked’ Website; the adult patron need only ask a librarian to unblock the specific Website or, alternatively, ask the librarian, ‘Please disable the entire filter.’” 58

Filtering Technology Empowers Consumers Supporters of rating and filtering call them an “empowerment tool” for consumers. Some even predict that groups reflecting the entire spectrum of religious and cultural views will someday offer their own rating systems and filtering programs, thus enabling every family to choose a product that fits its values. Although filtering software is not perfect, many believe that the state of the art has improved. Recently, a reviewer found that a filtering product marketed to businesses offered a “set of 88 categories [that] makes important decisions between sex education and sex, between prescribed medications and abused drugs.” 59 The Supreme Court seems to agree. In June 2004, it suggested that filtering was better now than it was five years earlier when a federal district court found that it might be more effective than COPA. Supporters of filtering add that market forces will ensure that vendors keep improving their products.

Filtering Technology Is Consistent With Community Standards Surveys show that most school districts have installed filters on their Internet terminals. Supporters believe that school-based filtering is consistent both with a school’s responsibility for students’ well being and with its authority to decide what materials are appropriate in the classroom. In the case of libraries, the issues are more complex. In the past, librarians were faced with limited budgets and a finite

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amount of shelf space. They were expected to use their professional judgment and decide which materials were suitable. Once libraries offered online access, some argued that they had in effect acquired the entire contents of the Internet, pornography and all. In American Library Association, the Supreme Court rejected this argument, stating that “the government has broad discretion to make content-based judgments in deciding what private speech to make available to the public.” 60 Another issue is whether young library patrons should be allowed to use unfiltered terminals. The American Library Association’s policy asks libraries not to deny access to materials on the basis of age. Opponents of that policy argue that it undermines parents’ authority, is contrary to libraries’ long-standing tradition of maintaining separate collections for adults, and could lead to illogical results: Parents sign their child’s application for a library card, promising to make the library whole if books are lost. The parents get a notice that a book is overdue. However, when they ask which book is missing, they are told, at least by those libraries who adhere strictly to the said policies, that this cannot be disclosed—unless the parents bring a consenting note from the child.61

• What should be the minimum age for using unfiltered terminals in public libraries? Should there be an age limit at all?

A library’s failure to crack down on Internet pornography also can be costly. In 2003, the Minneapolis Public Library paid more than $400,000 to settle a lawsuit by library employees who alleged that they were sexually harassed by a group of men who spent hours watching pornography on library terminals. The employees released a statement that read in part, “Many of the problems . . . were at their root a result of positions taken


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by the American Library Association. The American Library Association’s concern has been entirely with the rights of the person viewing obscene images, to the exclusion of the rest of the public.” 62 Indecency opponents also charge that library officials who allow access to pornography undermine community standards. Attorney Sarah Warren observed, “The irony that some local governments that operate libraries are, at the same time, struggling to zone adult bookstores out of many sections of their communities is not lost on librarians.” 63 Opponents add that much online pornography is more graphic, and has even less social value, than the material sold in adult bookstores.

Self-Regulation Has Succeeded Elsewhere Supporters of self-rating argue that it has worked for other media. The best example is the Motion Picture Association of America, which, in 1968, adopted a system under which films were assigned age-based ratings from “G” (films for general audiences) to “NC-17,” (films to which no one younger than 17 can be admitted). Ratings do not carry the force of law, but, in general, theater operators enforce age restrictions, and major video stores refuse to carry adult-rated films. In addition to mainstream motion pictures, there is an entire category of pornographic films whose producers do not participate in the MPAA’s rating system; these unrated films are not carried by major theaters or video chains. Although some criticize individual rating decisions, the MPAA system is generally respected. • Does an adult rating make a film or television show more attractive to young people?

Since 1996, the broadcast industry has not only assigned age-based ratings to programs but has also warned about sexual situations, violence, and language. Television ratings are recommendations to parents. They can also be read by the V-chip, (continued on page 82)

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Keeping Adult Content From Young People In 2000, the Child Online Protection Commission, a panel created by Congress as part of the Children’s Online Protection Act, studied a range of measures that could be taken to keep young people from accessing indecent content online. The Commission concluded: [N]o single technology or method will effectively protect children from harmful material online. Rather, a combination of public education, enforcement, consumer empowerment techniques and methods, increased enforcement and industry action are needed to address this concern.* Ideas considered by the Commission included the following:

•

URL-BASED FILTERING BY PROVIDERS Advantages: Highly effective in blocking harmful content, easier to implement on a wide scale, more difficult to defeat. Disadvantages: May not block newly created material, imposes costs on users, might overblock, raises privacy concerns.

•

URL-BASED FILTERING BY USERS Advantages: Widely available, relatively cheap and effective. Disadvantages: Requires updating, can be defeated, might overblock.

•

TEXT-BASED FILTERING, BY PROVIDERS OR USERS Advantages: Might be able to analyze email, can keep up with newly created content. Disadvantages: Might overblock, might be costly, raises privacy concerns.

•

INDUSTRY RATING SYSTEM Advantages: Effective, if widely adopted; might lead to creation of child-friendly zones. Disadvantages: Deceptive self-rating, might drive sites off the Internet, could lead to mandatory rating.

•

THIRD-PARTY RATING Advantages: Effective, if widely adopted; could better identify adult content. Disadvantages: Raters might not keep up with new content, possible disagreements over ratings.

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CREDIT CARD-BASED AGE VERIFICATION SYSTEM Advantages: Already used by soft-core pornography sites, keeps most young people from accessing adult content.


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Disadvantages: Costly to small Website operators; does not block newsgroups, chat, or instant messaging; raises privacy concerns; possible “chilling effect” on speech.

•

INDEPENDENTLY-ISSUED PROOF OF AGE Advantages: Already in existence, keeps most young people from accessing adult content. Disadvantages: Costly to small Website operators; does not block newsgroups, chat, or instant messaging; raises privacy concerns; possible black market in counterfeit proof of age.

•

“HARMFUL TO MINORS” TOP-LEVEL DOMAIN (E.G.,“.XXX”) Advantages: Technically feasible, would make filtering easier, low cost. Disadvantages: Creates a “red light district”that could attract minors; does not apply to newsgroups, chat, or instant messaging; could become mandatory.

•

“KID-SAFE” TOP-LEVEL DOMAIN (E.G.,“.KIDS”) Advantages: Already in existence; allows creation of “kid-friendly zones,” and makes them easier to find; low cost. Disadvantages: Does not apply to newsgroups, chat, or instant messaging; unattractive to older teens; might attract predators.

•

“KID-FRIENDLY ZONES” (“GREENSPACES”) Advantages: Some zones already exist, effective when parents are aware and involved. Disadvantages: Possible technical problems, could be costly, could become mandatory.

•

MONITORING AND TIME-LIMITING TECHNOLOGIES FOR YOUNG USERS Advantages: Technology is available, helps enforce acceptable-use policies, also monitors non-Web content, could help police identify predators. Disadvantages: Requires parents to invest time and money, monitoring might invade privacy rights of older teenagers.

•

ACCEPTABLE-USE POLICIES IN SCHOOLS AND LIBRARIES Advantages: Could discourage young users from accessing pornography sites, used by many schools and libraries. Disadvantages: Requires investment of time and money, raises privacy concerns, may “chill” older teenagers’ access to appropriate materials.

*

Commission on Child Online Protection. Report to Congress. Washington, D.C., 2000. Available online at http://www.copacommission.org/report/COPAreport.pdf.


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which can be found in millions of television sets. The broadcast industry has established two Websites, www.tvratings.org and www.controlyourtv.org, that explain the rating system and how the V-chip works. Since 1994, the video game industry has rated content. It assigns age-based ratings to games and warns of specific content —such as cartoon violence, depictions of gambling or drinking, and “blood and gore”—that might be inappropriate for young players. Video game ratings, like film ratings, do not have the force of law. Nevertheless, the National Institute for Media and the Family reported that 79 percent of video game retailers either required proof of age or planned to do so by the end of 2004. A related form of self-regulation is an industry-wide code of conduct. Some believe that online content providers, especially commercial pornographers, must either police themselves or have government do it for them. Representative Cliff Stearns (R-FL) told a congressional hearing about the pornography industry’s unethical practices: Web pornographers are increasingly using online deception and trickery to lure visitors to their websites. Domain names are being manipulated to appear benign and “mousetrap” their victims. Spam and fraudulent advertising are being employed to lure unsuspecting visitors, many of them children, to obscene material.64

Summary Some believe that rating and filtering Internet content are an alternative to legislation and the constitutional problems that accompany it. Rating systems have been developed for online content, and parents can choose from a variety of filtering


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products. Many believe that rating and filtering are more effective than legislation because they also block access to non-pornographic material that parents find objectionable, and filters can be tailored to the standards of individual communities and families. In public schools and libraries, filtering accommodates First Amendment rights and society’s interest in curbing pornography.

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Rating and Filtering Are Dangerous t is possible to rate television programs, motion pictures, and video games because the amount of content is manageable and the industries that produce it have the resources to make sure the rating is done properly. That is not true of the Internet. The leading search engines claim to have indexed more than 3 billion World Wide Web pages, and an estimated 1.5 million pages are added every day. Furthermore, unlike films or novels, Websites do not remain the same; content can be added, deleted, or moved to another address. Given the scope of the task, ratings of Internet content are likely to be flawed.

I

Human Rating of Internet Content Is Unreliable Most human rating of Internet content is done by private companies, and the employees conducting this work make mistakes. As a federal district court recently found, “Errors are

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likely to result from boredom or lack of attentiveness, overzealousness, or a desire ‘to err on the side of caution’ by screening out material that might be offensive to some customers, even if it does not fit within any of the company’s categories.” 65 The court added that human reviewers reject content that is not even covered by laws regulating pornography: “None of the filtering companies trains its reviewers in the legal definitions concerning what is obscene, child pornography, or harmful to minors, and none instructs reviewers to take community standards into account when making categorization decisions.” 66 • Should vendors of filtering software explain their blocking criteria to would-be customers?

Another problem with ratings is that they are subjective, and reasonable people differ in their rating decisions. For example, the Motion Picture Association of America gave Michael Moore’s documentary, “Fahrenheit 9/11,” an “R” rating, in part because of graphic scenes from the Iraq war. Moore argued that those scenes had serious political value: “It is sadly very possible that many 15- and 16-year-olds will be asked and recruited to serve in Iraq in the next couple of years. If they are old enough to be recruited and capable of being in combat and risking their lives, they certainly deserve the right to see what is going on in Iraq.” 67 The way in which Websites are organized also complicates the rating process. Many sites consist of hundreds of pages and thousands of linked images. Although obscenity laws require that a work be judged as a whole, it is not clear what constitutes a “work” on the Internet. Is it the entire Website, an individual page, or a single image? Some believe that laws directed at online pornography, such as the Children’s Online Protection Act, make it possible to judge an entire Website based on its most objectionable parts. As a federal appeals court observed: An isolated image located somewhere on a Website that meets the “harmful to minors” definition can subject the

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publisher of the site to liability under COPA, even though the entire Web page (or Website) that provides the context for the item would be constitutionally protected for adults (and indeed, may be constitutionally protected for minors).68

A related problem involves Websites, such as virtual art galleries, that display the work of others. If the owner is forced to rate her site, she faces a difficult choice. She can rate all the art on the site, but that would be time-consuming, and some

From the Bench Filters in Libraries: Mainstream Loudoun v. Board of Trustees Concerned that patrons might use Internet terminals to view pornography, the Loudoun County, Virginia, library board adopted a “Policy on Internet Sexual Harassment,” requiring that all terminals be equipped with filtering software. The library board chose the X-Stop filtering program. A group of county residents, backed by civil-liberties groups, challenged the filtering policy in federal court. In Mainstream Loudoun v. Board of Trustees of the Loudoun County Library, 2 F. Supp. 2d 783 (E.D. Va. 1998), District Judge Leonie Brinkema denied the library board’s motion to dismiss the case. She first determined that the filtering policy had to survive strict scrutiny. Agreeing with both sides, she found this case analogous to Board of Education v. Pico, 457 U.S. 853 (1982) in which five Supreme Court justices ruled that school authorities could not remove books from a library because they disagreed with their contents. Judge Brinkema concluded that filtering Internet content was not only the equivalent of removing books but was even less acceptable when done in a library. She wrote, “Adult library patrons are presumed to have acquired already the ‘fundamental values’ needed to act as citizens, and have come to the library to pursue their personal intellectual interests.” Judge Brinkema also concluded that by offering online access, the library had in effect acquired the entire contents of the Internet. She further determined that Mainstream Loudoun had alleged two separate violations of the First Amendment. First, the filtering policy limited adult Internet users to accessing


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artists might argue with her ratings. She can ask the artists to rate themselves, but some might refuse because they lack the time or object on principle to rating their own works. If she leaves unrated art on her site, filtering programs might treat the entire site as unrated and block it. Vendors of filtering software have been accused of religious or political bias. Nancy Willard of the Responsible Netizen Project found that some had ties to conservative religious organizations and even told customers that their filtering criteria

only speech that was fit for young people. Second, the policy chilled adult users’ right to access protected speech by requiring patrons to submit a written request with their names, telephone numbers, and detailed explanations of why they wanted a site unblocked. In November 1998, in an unreported decision, Judge Brinkema permanently enjoined the library board from enforcing the filtering policy. Even assuming that curbing sexual harassment and limiting access to pornography were compelling interests, she found that those problems existed at only a handful of other libraries. Additionally, she found that there were less restrictive alternatives, including installing privacy screens, enforcing acceptable-use policies, and allowing adults to use unfiltered terminals. Judge Brinkema concluded that the filtering policy violated the First Amendment for another reason. It was an unconstitutional prior restraint on speech. She found that it defined too broadly what adults could not see, gave library staff too much discretion to refuse a request to unblock a site, and provided no way to appeal a refusal. Furthermore, it contracted out the library’s decision-making function to a vendor that refused to disclose its blocking criteria and whose criteria might not fit the legal definition of obscenity, harmful-to-minors, or the library board’s own policy. In April 1999, the library board decided not to appeal. Instead, it adopted a new Internet-use policy that largely incorporated the less restrictive alternatives suggested by Judge Brinkema.


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were in accord with “Biblical standards” and answered to a “higher authority.” She concluded, “The existence of these relationships and blocking categories raises the concern that the filtering products used in schools are inappropriately preventing students from accessing certain materials based on religious or other inappropriate bias.” 69 • Are our country’s laws too influenced by religious beliefs? Is it possible to separate religious beliefs from right and wrong?

Author Marjorie Heins also touched on this issue. In Not in Front of the Children: “Indecency,” Censorship, and the Innocence of Media, Heins described what happens when bias enters into filtering decisions: CYBERsitter, described by Time magazine as “the most aggressively conservative filtering program,” blocked the National Organization for Women’s website and virtually all gay and lesbian information. Cyber Patrol blocked the Queer Resources Directory; SurfWatch blocked Associated Press and Reuters articles about AIDS.70

Some people favor self-rating over third-party rating, claiming that this would lead to more of the Web being rated. Self-rating, however, also raises concerns. Some civil-liberties groups fear that it will enable large corporations to dominate the Internet because they have the resources to rate themselves. On the other hand, small, independent Websites might lack the time and money to self-rate and thus risk being blocked as unrated. Additionally, the idea that individuals should rate their own speech is contrary to long-standing principles of constitutional law. The American Civil Liberties Union argues: A proposal that we rate our online speech is no less offensive to the First Amendment than a proposal that publishers of books and magazines rate each and every article or story,


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or a proposal that everyone engaged in a street corner conversation rate his or her comments.71

• For a library, which is more important: upholding community standards or defending free inquiry?

Filtering Software Is Faulty Because human rating is time-consuming and expensive, filtering software also relies on computer programs that look for words associated with offensive content. Because programs are largely unable to determine a Website’s social value, they tend to “overblock” or deny access to acceptable sites based on inaccurate criteria. That is especially true of less sophisticated software. It was recently reported that Google, the most popular Internet search engine, still used an early version of the SafeSurf filter, which blocked a number of sites with “sex” in their URLs. The blocked sites included PartsExpress.com, an electronic component store; BassExpert.com; and EssexCountyBeekeepers.org. Other filtering programs have blocked Websites because of “guilt by association.” In 2000, a candidate for Congress discovered that his Website had been blocked because it was on the same computer server that hosted pornography sites. The unfairness of overblocking is aggravated by the fact that the owner of a blocked site has no legal recourse even if the blocking costs him a considerable amount of business. Overblocking is also a serious problem for young people looking for health-related information. Studies show that 70 percent of 15- to 17-year-olds use the Internet to find information about sexuality, drug abuse, and other health concerns. According to the Kaiser Family Foundation, their search for information is hampered by filters. Kaiser found that “one in every four health sites was blocked, on average, at the most restrictive setting, and for topics related to sexual health, the rates were as high as one in every two sites.” 72

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The Kaiser researchers also found that popular filtering programs “underblock.” Almost 10 percent of pornographic sites got through the filters, even at their most restrictive settings. Other researchers have also found that filters underblock. For this reason, critics maintain they provide a false sense of security.

Rating and Filtering Are a Form of Censorship Unlike the V-chip, which is controlled by the owner of a television set, filtering software can place control of an Internet terminal in the hands of someone else, such as an Internet service provider, an employer, or a librarian. When government bodies such as libraries install filters, public officials are in effect deciding what speech may be accessed. Although the Supreme Court has ruled that library-based filters, by themselves, do not violate the First Amendment, it also suggested that restrictive library rules, especially those requiring adults to explain why they want a site unblocked, could violate the First Amendment. Some object to filters in libraries and schools because they discriminate against minorities and the poor. They argue that children of well-off parents tend to have access to unfiltered terminals at home and can thus find a broader range of online material than children from poor families can find. For this reason, Judith Krug of the American Library Association argued, “Filters are just fine for parents to use at home. They are not appropriate for institutions that might be the only place where kids can get this information.” 73 • Is mandatory self-rating an unfair restraint of free speech? Would it be fairer if only commercial Websites had to self-rate?

Another objection to library-based filtering is that it allows third parties to carry out functions traditionally performed by officials who must answer to the public. Critics warn that it is dangerous to put filtering decisions into the hands of private businesses that make decisions in secret. As Nancy Willard has


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noted, “The responsibility and the authority for decisionmaking about which sites fit or do not fit into these specific filtering categories have been transferred from educators and librarians to companies that are totally unaccountable.” 74 Finally, opponents of filtering maintain that less restrictive alternatives, such as mandatory Internet “driver’s education,” not only minimize constitutional problems but are more effective in the long run: Sooner or later students graduate to the real world, or use a computer without blocking software. An educational program could teach students how to use the technology to find information quickly and efficiently, and how to exercise their own judgment to assess the quality and reliability of information they receive.75

Rating and Filtering Could Become Mandatory Although they are described as “consumer-empowerment tools,” critics warn that rating and filtering could become mandatory. One step in that direction would be a law imposing penalties for giving a Website a deceptive rating. The logic behind such a law is that without penalties, an individual has no incentive to give his site an adult rating that could result in its being blocked. Some go further and propose mandatory self-rating of adult content. This has already happened in the case of spam; the government now requires the sender of a sexually oriented email to place an “adult” label on the subject line. Even if self-rating is not required by law, civil-liberties groups warn that Website owners might be pressured into rating them. This has happened with other media. In 1934, the motion picture industry reacted to protests by religious groups by adopting the Hays Code, which not only barred nudity and sexuality but also candid depictions of drug use and prostitution. A 1954 Senate investigation of violent comic books led

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that industry to adopt a strict code, one criterion of which was whether a title promoted “respect for parents.” In 1996, the broadcasting industry bowed to congressional demands and adopted a rating system for television programs. These measures were “voluntary,” but they were created as a means of avoiding even more restrictive legislation. The ACLU has warned that this might happen online, saying that “despite all

The Letter of the Law American Library Association Bill of Rights The American Library Association affirms that all libraries are forums for information and ideas and that the following basic policies should guide their services. 1. Books and other library resources should be provided for the interest, information, and enlightenment of all people of the community the library serves. Materials should not be excluded because of the origin, background, or views of those contributing to their creation. 2. Libraries should provide materials and information presenting all points of view on current and historical issues. Materials should not be proscribed or removed because of partisan or doctrinal disapproval. 3. Libraries should challenge censorship in the fulfillment of their responsibility to provide information and enlightenment. 4. Libraries should cooperate with all persons and groups concerned with resisting abridgment of free expression and free access to ideas. 5. A person’s right to use a library should not be denied or abridged because of origin, age, background, or views. 6. Libraries that make exhibit spaces and meeting rooms available to the public they serve should make such facilities available on an equitable basis, regardless of the beliefs or affiliations of individuals or groups requesting their use. Adopted June 18, 1948. Amended February 2, 1961, and January 23, 1980, inclusion of “age” reaffirmed January 23, 1996, by the ALA Council.


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good intentions, the application of ratings systems is likely to lead to heavy-handed government censorship. Moreover, the targets of that censorship are likely to be . . . relatively powerless and controversial speakers.” 76

Summary Rating and filtering Internet content, which many consider a less restrictive alternative to legislation, threatens free expression. It is often unreliable because human reviewers make mistakes and computer programs cannot evaluate the social value of online content. Filtering also allows private businesses to decide what people may access in public libraries and schools even though they are not accountable to voters and might block sites on the basis of political or religious bias. Finally, “voluntary” rating and filtering could become mandatory, either through legislation or public pressure. The result, some believe, will be an Internet that resembles a shopping mall more than a forum for the exchange of ideas.

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The Future of Indecency Regulation ourts decide legal questions by analogy, drawing from earlier decisions involving similar facts. In the case of indecency, those decisions are Ginsberg, which ruled that the government could regulate material that is harmful to minors, and Pacifica, which upheld the broadcast indecency rule. In the years that followed, courts applied them to newer media. In the future, courts will decide how far the government can go in restricting indecency on media such as satellite television and instant messaging. Ultimately, the government will also decide what standard should apply in a world of media convergence, “the ability of a single communication service provider, such as a cable television company, to provide voice telephony, video, and data (e.g., facsimile) services simultaneously over a single wire.” 77

C

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• Do indecency regulations impose some people’s standards on everyone? Would you prefer that families decide what they see and hear?

The Future of the Indecency Rule Even before Super Bowl XXXVIII, Congress was considering anti-indecency legislation. After the FCC’s enforcement staff ruled that the F-word was not necessarily indecent, Representative Doug Ose (R-CA) introduced a bill specifically defining eight words and phrases, and any “compound use” or “other grammatical forms” of them, as profane.78 The Super Bowl incident also spurred both houses of Congress to pass bills that would substantially alter indecency fines and time limits for deciding cases. However, the bills were different, and the two houses could not work out the differences between them. The House version would have authorized fines for individual performers and contained a “three strikes” rule directing the Commission to review a station’s license after three violations. The Senate version nullified a 2003 Commission decision allowing broadcasters to own more stations and laid the groundwork for a possible extension of the indecency rule to violent programs.79 A legal battle over the indecency rule appears likely. A coalition of broadcasters, performers, and civil-liberties groups has asked the FCC to reconsider its ruling that the F-word is indecent per se. Furthermore, Infinity Broadcasting, which employs Howard Stern, has refused to pay a number of fines imposed on its stations. Many experts believe that a legal challenge to the rule will eventually reach the Supreme Court and force it to revisit Pacifica.

Indecency and Other Media Some members of Congress favor extending the indecency rule to cable television. In April 2004, an amendment to that effect was narrowly defeated in a Senate committee. Many expect

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lawmakers to try again, especially if they believe that the cable industry has not done enough to curb indecency. Even if the proposal becomes law, it faces an uncertain future because the Supreme Court has found less justification for regulating programs on cable. Rather than risk a constitutional fight, some lawmakers instead proposed alternatives to laws restricting content.

Indecency in Other Media Trading Cards. Nassau County, New York, passed an ordinance extending the definition of “harmful to minors” to trading cards that depicted heinous crimes and criminals. Eclipse Enterprises, Inc., the publisher of “Crime and Punishment” and “True Crime” cards, challenged the ordinance in court. The case reached the U.S. Court of Appeals for the Second Circuit which, in Eclipse Enterprises, Inc. v. Gulotta, 134 F.3d 63 (2d Cir. 1997), ruled that the ordinance was unconstitutional. Although the appeals court found the interest in protecting young people “compelling,” it also found that the county had not produced evidence showing a cause-and-effect relationship between violent trading cards and juvenile crime or psychological harm. It also questioned why the county had singled out trading cards when other media, including books in the public library, contained similar descriptions of crimes and criminals. Having found insufficient justification for banning crime-related trading cards, the appeals court found it unnecessary to address a more difficult issue—namely,“whether carefully delimited and properly tailored restrictions on distribution of nonobscene but otherwise harmful speech to minors, especially younger minors, can ever pass the strict scrutiny test.” Video games. In 1992, a federal appeals court struck down a Missouri law banning the sale to young people of films that appealed to “a morbid interest in violence.” The court ruled that the law did not contain a precise enough definition of which films were to be regulated. When violent content appeared in a new medium— this time, video games—St. Louis County passed an ordinance making it illegal to sell “graphically violent” games to a minor without parental consent. The video game industry challenged the ordinance, and, in Interactive Digital Software


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Legislation was introduced in the 108th Congress that would require cable operators to offer stations to consumers on an “a la carte” basis rather than as part of a “tier” or package. Supporters of these bills argue that it is unfair to require a customer who wants a cooking channel to pay for channels with R-rated films. The leading cable companies oppose the bills, arguing that lesser known programs, which are subsidized by

Association v. St. Louis County, 329 F.3d 954 (8th Cir. 2003), a federal appeals court ruled it unconstitutional. The court rejected the argument that video games were not protected by the First Amendment because they were a new medium and were interactive in nature: If the First Amendment is versatile enough to shield the painting of Jackson Pollock, music of Arnold Schoenberg, or Jabberwocky verse of Lewis Carroll, we see no reason why the pictures, graphic design, concept art, sounds, music, stories, and narrative present in video games are not entitled to a similar protection. The mere fact they appear in a novel medium is of no legal consequence. The court also rejected the county’s argument that graphically violent games were obscene with respect to minors, stating that “depictions of violence cannot fall within the legal definition of obscenity for either minors or adults.” Turning to the issue of harm to young people, the appeals court found insufficient evidence that playing violent games caused psychological damage. It also warned that helping parents to safeguard their children’s well being was such a broad justification that it could lead to the undermining of young people’s First Amendment rights. Beer Labels. The label for Bad Frog beer contains an artist’s rendering of a frog “giving the finger.” That label was rejected by the New York State Liquor Authority, which concluded that it would encourage irresponsible drinking and could be seen by young children. Bad Frog’s appeal eventually reached the U.S. Court of Appeals for the Second Circuit, which, in Bad Frog Brewery,


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Inc., v. New York State Liquor Authority, 134 F.3d 87 (2d Cir. 1998), overturned the liquor authority’s ruling. The appeals court characterized the Bad Frog label as “commercial speech,” which enjoyed considerable First Amendment protection, albeit less than political speech. Whereas the court found that New York had a “substantial” interest in protecting young people from vulgarity, it concluded that banning the label would do little to “directly advance” that interest: In view of the wide currency of vulgar displays throughout contemporary society, including comic books targeted directly at children, barring such displays from labels for alcoholic beverages cannot realistically be expected to reduce children’s exposure to such displays to any significant degree. The court also concluded that the liquor authority had failed to consider less restrictive measures, such as segregating Bad Frog products in grocery stores or insisting that the frog not appear on the outside of six-packs and cases. Vulgar Sports Fans. Indecency has also become an issue in the world of sports. In January 2004, a national audience watching the Duke-Maryland men’s basketball game on ESPN heard a vulgar chant by Maryland fans directed at a Duke player. Embarrassed by the incident, university officials asked what could be done to put a stop to vulgar language at sports events. The Maryland Attorney General’s office advised that a narrowly drawn policy against offensive speech would be constitutional because some spectators, especially children, were a “captive audience.” The Attorney General’s office cautioned, however, that an antivulgarity policy must be specific, may not involve criminal penalties, and must afford fans due process—including notice of the policy and an appeal process. Not everyone agrees that an offensive-speech policy would be constitutional. An assistant attorney general in Wisconsin, where university officials are looking for ways to deal with vulgarity at University of Wisconsin games, observed, “If you don’t want to hear it, leave. . . . You’re not a captive audience. You’re there willingly. If you don’t like it, walk out, even if you’ve paid for a ticket.”* *

Andy Baggott,“School Considers New Policy for Offensive Fans,” Wisconsin State Journal, March 31, 2004.


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popular ones, could be driven off the air by a la carte pricing. Another alternative, proposed by FCC Commissioner Kevin Martin, would encourage cable companies to offer an entire tier of stations that are appropriate for family viewing. Because of the legal battle over the Children’s Online Protection Act, congressional efforts to regulate online indecency are largely on hold. Congress, however, has passed a couple of less restrictive measures. The “Dot Kids Implementation and Efficiency Act of 2002” created a new “kids.us” domain, reserved for sites with no harmful-to-minors content and appropriate safeguards against predators.80 In addition, a provision of the PROTECT Act makes it illegal to use a misleading domain name, such as “NASA” or “Whitehouse,” to trick young people into visiting pornography sites.81 Even if COPA survives, it may have limited effect. In an effort to save the law, dissenting justice Stephen Breyer read it narrowly and found that it applied only to a narrow class of near-obscene material. Furthermore, COPA would apply only to the World Wide Web and not to chat rooms, message boards, or file-sharing networks where a considerable amount of pornography can be found. Some believe that the long-term outlook for online indecency regulation is more promising. They point out that courts recognize the government’s compelling interest in protecting young people; their problem has been with the technological means of furthering that interest. They predict that cheap and effective age-verification software will eventually be developed, and that once it is, Website owners can create “adults-only zones,” just as bookstore owners physically segregate pornography. Others maintain that existing technology allows commercial pornography sites to verify visitors’ ages without seriously burdening them. In addition, courts might someday conclude that filtering is not a less restrictive alternative after all, because it underblocks pornography, is not widely used by parents, and is too easy

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for young people to circumvent. Some foresee a day when the Internet resembles older, more familiar media, and courts are less reluctant to regulate it: Cable modems and media alliances are beginning to turn the Internet into a type of medium closer to that of broadcasting. The Court relied on specific Internet characteristics when determining the appropriate level of First Amendment protection. If these characteristics no longer exist, the protection also may disappear.82

Industry Concentration and “Private Censorship” A long-running argument about American mass media has been whether too many outlets are in too few hands. In the early days of radio, most stations belonged to one of four networks— two of which were owned by the same company. In 1940, the FCC concluded: To the extent that the ownership and control of radio broadcasting stations falls into fewer and fewer hands, whether they be network organizations or other private interest, the free dissemination of ideas and information, upon which our democracy depends, is threatened.83

Today, advocates warn that a handful of large companies dominate the television and radio industries. Some believe that concentration of ownership contributes to indecency; they allege that company executives live far away from the communities they serve and consider making money more important than respecting local standards. It has also been argued that large corporations will dominate the Internet and that once they do, they will limit free expression even more than the government has tried to. Some warn that the leading Internet companies will someday adopt a voluntary rating system and, at the same time, control blocking


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In 2003, the FCC eased restrictions on media ownership, allowing broadcasters to own more outlets in the same city. This photograph shows protestors outside of the FCC’s offices in Washington, D.C., demonstrating against the deregulation.

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and filtering technology. Should this happen, independent voices could all but disappear from the Internet: People who disseminate quirky and idiosyncratic speech, create individual home pages, or post to controversial newsgroups, will be among the first Internet users blocked by filters and made invisible by the search engines. Controversial speech will still exist, but will only be visible to those with the tools and know-how to penetrate the dense smokescreen of industry “self-regulation.” 84

• Will large companies someday dominate the Internet? Can they stifle free expression online?

A related concern is that large companies might self-censor, blocking access to controversial content, in order to avoid boycotts and protests—even if those objecting are a vocal minority. Unlike a decision by government officials, a private business’s decision to reject content does not violate the First Amendment. Some experts believe that the Platform for Internet Content Selection (PICS) technology, which was designed to support an industry-wide standard for rating content, could instead lead to “private censorship.” They point out that PICS is supported by large companies that dominate the Web browser market and own the major Internet search engines. It has even been suggested that PICS might change the nature of the Internet. Professor Lawrence Lessig, an expert in law and technology, has warned, “Taken together, filtering and PICS leads to a hard-wired architecture of blocking that is antagonistic to the original freewheeling and speech-enhancing values of the Internet.” 85

Is Legislation the Answer? After the Supreme Court found the Communications Decency Act unconstitutional, government and industry leaders explored


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the feasibility of filtering and other technology that would give families greater control over what enters their homes. Some policymakers believe that filtering technology, like cable lockboxes and the V-chip, should be made available to every parent. A few even suggest requiring computer manufacturers to install filtering software. Not all alternatives involve technology; some, in fact, believe that technological “quick fixes” do more harm than good in the long run. One nontechnological alternative is self-regulation, especially by the broadcast industry. FCC Commissioner Michael Copps believes that the time has come to bring back the Code of Broadcast Conduct whose ideals included “respect for the special needs of children,” “community responsibility,” and “decency and decorum in production.” Two months after Super Bowl XXXVIII, Copps told a gathering of broadcast executives, “It is time for a tough new code. And the code I’d like to see is not some bland statement of general principles, but something explicit and including incentives to encourage compliance.” 86 • Do you think technology will someday make anti-indecency laws unnecessary?

Another suggestion is raising a generation of educated media consumers who will find sexual and violent content less appealing than today’s young people do. Some American school districts currently have media-education programs. Students in Yakima, Washington, for example, are taught about film techniques, media myths, advertising ethics, and journalistic bias. Finally, even though government is large and powerful, parents remain the strongest influences in most children’s lives. Legal and technological measures to fight pornography will never be foolproof, nor will they be as effective as involved parents. As Jerry Berman of the Center for Democracy and Technology has explained, “When we educate children at home and at school, we impart important values to them—we teach

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them to use seat belts, not to smoke, and to stay away from illicit drugs. Our message to children about safe activity online must be as clear and strong.” 87

Stern Punishment? In the Matter of Clear Channel Communications, Inc. On March 5, 2004, in an indecency case involving a Detroit FM station, the Federal Communications Commission imposed the maximum fine, $27,500, and warned that in the future, it would impose separate fines for multiple indecent utterances in the same broadcast. A month later, the Commission made good on that threat. It fined Clear Channel Communications a total of $495,000 for the April 9, 2003, Howard Stern Show, which aired on six Clear Channel stations. The Commission found three separate “indecent utterances,” levied the maximum fine for each, and warned that “serious, repeated cases of indecency violations” could cause offending stations to lose their broadcast licenses. Clear Channel, which was involved in other indecency cases, some of which resulted in substantial fines, decided it was no longer worth fighting the FCC. It adopted a zero-tolerance policy for indecency and canceled Howard Stern’s show. It also fired several hosts, including “Bubba, the Love Sponge,” whose broadcasts had resulted in fines. Clear Channel then negotiated with the FCC to settle the Stern case as well as other pending cases. On June 8, 2004, the FCC announced that it had entered into a consent decree under which Clear Channel would pay the United States Treasury $1.75 million in exchange for the Commission’s dropping all pending indecency cases against it.* Clear Channel adopted a company-wide compliance plan requiring on-air talent and other employees involved in programming decisions to receive training on the indecency rule. Employees found in violation of the rule would be summarily fired. Commission Chairman Michael Powell defended the settlement, expressing concern that the indecency crackdown might have gone too far. He stated,“By its very nature, government action, or even mere threats, to quell protected speech can have the unintended consequence of depriving the public of a speaker’s artistic, literary, scientific or political viewpoint.” Powell added that the settlement


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While both sides in the indecency debate agree on parental involvement, they are far apart regarding the role of government. Supporters of legislation insist that parents

would allow his agency to “focus on more egregious violators that are less willing to take preventive steps.” Commissioner Michael Copps dissented. Citing Clear Channel’s long history of violations, he wrote,“The totality of a broadcaster’s record is pertinent and should be considered when licenses are renewed. Today’s decision takes this entire part of the record off the table.” Copps also objected to the settlement because it ended a number of indecency proceedings that had not been fully investigated. He stated, “What message do we send to citizens when we fail even to investigate their complaints before making a sweeping settlement?” Copps reminded fellow commissioners that Clear Channel had been the worst violator of the indecency rule and that twothirds of the fines proposed by the Commission involved its stations. Finally, he found the Clear Channel case similar to a 1995 settlement with Infinity Broadcasting. He warned: I don’t know of anyone who claims that the 1995 consent decree has resulted in less indecency on the airwaves. In fact, over the past few years, Infinity is second only to Clear Channel in the number of fines. Some would have us believe these fines are powerful disincentives to big companies broadcasting indecency. But one- or two-million dollar fines need to be seen in the context of these mega-companies’ multi-million dollar revenue streams. The settlement with Clear Channel did not end the FCC’s long-running battle with Howard Stern. The Commission has yet to impose a fine on Infinity, which employs Stern, whose stations had also aired the April 9, 2003, broadcast. Many observers expect Infinity to challenge that fine in court. *

In the Matter of Clear Channel Communications, Inc., FCC No. 04-128 (2004).


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cannot control pornography without legislative help. Civil libertarians like Marjorie Heins would rather rely on measures that do not involve compulsion. According to Heins, “The question is whether taboos and restrictions should be imposed by government or powerful corporations, or whether media literacy, sexuality education, youth arts

The Letter of the Law Excerpts From the Children’s Online Protection Act After the Supreme Court overturned the Communications Decency Act in Reno v. American Civil Liberties Union, Congress passed the Children’s Online Protection Act.* COPA’s constitutionality remains in doubt and might remain so for months— or even years—to come. The drafters of COPA attempted to meet the Reno Court’s objections to CDA. For one thing, the Court limited its scope to content on the World Wide Web as opposed to email, chat rooms, and message boards. Many argue that a great deal of online pornography is available outside the Web. (a) Requirement to restrict access. (1) Prohibited conduct. Whoever knowingly and with knowledge of the character of the material, in interstate or foreign commerce by means of the World Wide Web, makes any communication for commercial purposes that is available to any minor and that includes any material that is harmful to minors shall be fined not more than $50,000, imprisoned not more than six months, or both. (2) Intentional violations. In addition to the penalties under paragraph (1), whoever intentionally violates such paragraph shall be subject to a fine of not more than $50,000 for each violation. For purposes of this paragraph, each day of violation shall constitute a separate violation. (3) Civil penalty. In addition to the penalties under paragraphs (1) and (2), whoever violates paragraph (1) shall be subject to a civil penalty of not more than $50,000 for each violation. For purposes of this paragraph, each day of violation shall constitute a separate violation. COPA, like CDA, offers affirmative defenses that allow a person charged with a


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programs, and training in nonviolent dispute resolution are more likely to be both more effective and less destructive of basic freedoms.” 88 The question arises whether legislation is an all-or-nothing proposition. Law and technology expert Lawrence Lessig disagrees: “What we need to do is find the right combination

violation to argue in court that he took good-faith steps to keep those under 17 from visiting his Website. Critics of affirmative defenses argue that they provide no protection against being prosecuted in the first place and could lead to the chilling of protected speech. (c) Affirmative defense. (1) Defense. It is an affirmative defense to prosecution under this section that the defendant, in good faith, has restricted access by minors to material that is harmful to minors (A) by requiring use of a credit card, debit account, adult access code, or adult personal identification number; (B) by accepting a digital certificate that verifies age; or (C) by any other reasonable measures that are feasible under available technology. COPA’s drafters narrowed the CDA in two other ways—by focusing on online sellers of pornography rather than all content providers and by focusing on material that was harmful to minors rather than indecent. It is unclear whether COPA is narrow enough to survive a constitutional challenge. (e) Definitions. For purposes of this subsection (sic) the following definitions shall apply: (2) Commercial purposes; engaged in the business (A) Commercial purposes. A person shall be considered to make a communication for commercial purposes only if such person is engaged in the business of making such communications.


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(B) Engaged in the business. The term ‘’engaged in the business’’ means that the person who makes a communication, or offers to make a communication, by means of the World Wide Web, that includes any material that is harmful to minors, devotes time, attention, or labor to such activities, as a regular course of such person’s trade or business, with the objective of earning a profit as a result of such activities (although it is not necessary that the person make a profit or that the making or offering to make such communications be the person’s sole or principal business or source of income). A person may be considered to be engaged in the business of making, by means of the World Wide Web, communications for commercial purposes that include material that is harmful to minors, only if the person knowingly causes the material that is harmful to minors to be posted on the World Wide Web or knowingly solicits such material to be posted on the World Wide Web. (6) Material that is harmful to minors. The term ‘’material that is harmful to minors’’ means any communication, picture, image, graphic image file, article, recording, writing, or other matter of any kind that is obscene or that (A) the average person, applying contemporary community standards, would find, taking the material as a whole and with respect to minors, is designed to appeal to, or is designed to pander to, the prurient interest; (B) depicts, describes, or represents, in a manner patently offensive with respect to minors, an actual or simulated sexual act or sexual contact, an actual or simulated normal or perverted sexual act, or a lewd exhibition of the genitals or post-pubescent female breast; and (C) taken as a whole, lacks serious literary, artistic, political, or scientific value for minors. (7) Minor. The term ‘’minor’’ means any person under 17 years of age. *

Public Law 106-554, codified as 47 U.S.C. §231.


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of law, business incentives and architecture. . . . It won’t be any one of them. It’s a combination.” 89 That said, it must be noted that Americans disagree as to what combination is the right one. They are likely to do so for years to come.

Summary Many people believe that the fight against indecency is more than an election-year phenomenon and is an ongoing battle in America’s bitter “culture war.” Because attitudes toward indecency and censorship involve religious beliefs and deeply held emotions, compromise will be difficult, and decisions by courts and lawmakers will disappoint many Americans. The debate is complicated by the current state of First Amendment law. What can be regulated depends on the medium, the age of the audience, and the technological state of the art. In the years to come, new media and new ways of delivering traditional content will force the courts to reconsider the balance between individuals’ interests in free expression and society’s interest in protecting young people.

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CH.PCP.FRI.zBM.Final.q.Back

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NOTES Introduction

16 Newton N. Minow and Craig L LaMay, Abandoned in the Wasteland: Children, Television, and the First Amendment. New York, NY: Hill and Wang, 1995, p. 196.

1 U.S. Constitution. First Amendment. 2 United States v. Playboy Entertainment Group, 529 U.S. 803, 817 (2000).

17 Ibid., 127.

3 Michael C. Dorf, “Why Federal Law May Keep the Terminator Off the Air Until After California’s Recall Election: A Primer.” FindLaw.com, August 20, 2003. Available online at http://writ.corporate .findlaw.com/dorf/20030820.html.

18 Sam Schulman,“Howard Stern Whodunit,” The Wall Street Journal, March 26, 2004. 19 Eric Boehlert, “Dirty Tricks and Crappy Programming: Welcome to the World of Clear Channel, the Biggest Station Owner in America,” Salon.com, April 30, 2001. Available online at http://dir.salon.com/ent/feature/ 2001/04/30/clear_channel/index.html.

4 18 U.S.C. §1464. 5 Federal Communications Commission v. Pacifica Foundation, 438 U.S. 726, 732 (1978).

20 In the Matter of Complaints Against Various Licensees Regarding Their Airing of the “Golden Globe Awards” Program, No. 04–43, at 19 (2004) (statement of Commissioner Jonathan Adelstein).

6 Ibid., at 748. 7 Action for Children’s Television v. Federal Communications Commission, 58 F.3d 654, 667 (D.C. Cir. 1995).

21 Action for Children’s Television v. Federal Communications Commission, 58 F.3d 654, 666 (D.C. Cir. 1995).

8 Reno v. American Civil Liberties Union, 521 U.S. 344, 868–870 (1997). 9 United States v. Playboy Entertainment Group, 529 U.S. 803, 815 (2000).

Counterpoint: The Broadcast Indecency Rule Is Arbitrary and Unjust

10 In the Matter of Industry Guidance on the Commission’s Case Law Interpreting 18 U.S.C. §1464 and Enforcement Policies Regarding Broadcast Indecency, FCC 01–90, at 2 (2001).

22 In the Matter of Industry Guidance on the Commission’s Case Law Interpreting 18 U.S.C. §1464 and Enforcement Policies Regarding Broadcast Indecency, FCC 01–90, at 23 (2001) (separate statement of Commissioner Harold Furchtgott-Roth).

Point: Government Should Protect Young People From Indecent Broadcasts

23 Marjorie Heins, Not in Front of the Children: “Indecency,” Censorship, and the Innocence of Media. New York, NY: Hill and Wang, 2001, p. 86.

11 New York v. Ferber, 458 U.S. 747, 757 (1982). 12 Sable Communications of California, Inc. v. Federal Communications Commission, 492 U.S. 115, 126 (1989) (emphasis supplied). 13 Red Lion Broadcasting Co. v. Federal Communications Commission, 395 U.S. 367, 388–389 (1969).

24 Thomas W. Hazlett and David W. Sosa, Chilling the Internet? Lessons From FCC Regulation of Radio Broadcasting. Cato Institute Policy Analysis No. 270. Washington, D.C.: Cato Institute, 1997. Available online at http://www.cato.org/ pubs/pas/pa-270.html. 25 Robert Corn-Revere “Eye of the Beholder,” Broadcasting & Cable, April 16, 2001.

14 Federal Communications Commission v. Pacifica Foundation, 438 U.S. 726, 747–749 (1978).

26 Ibid.

15 Action for Children’s Television v. Federal Communications Commission, 58 F.3d 654, 663 (D.C. Cir. 1995).

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27 John Eggerton and Bill McConnell, “Smut Bill Bashed as ‘Bush’ League,” Broadcasting & Cable, March 11, 2004.


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NOTES 28 In the Matter of Industry Guidance on the Commission’s Case Law Interpreting 18 U.S.C. §1464 and Enforcement Policies Regarding Broadcast Indecency, FCC 01–90, at 4 (2001).

40 Sable Communications of California v. Federal Communications Commission, 492 U.S. 115, 132 (1989) (Scalia, J., concurring). 41 Jim Exon, “Only the Force of Law Can Deter Pornographers,” Computerworld, February 19, 1996.

29 Michael Powell, Remarks of Michael J. Powell, Chairman, Federal Communications Commission, at the National Association of Broadcasters Convention, April 20, 2004, Las Vegas, Nevada. Available online at http://hraunfoss.fcc.gov/edocs_public/ attachmatch/DOC-246876A1.pdf.

42 Ibid. 43 United States v. Playboy Entertainment Group, 529 U.S. 803, 847 (2000) (Breyer, J., dissenting). 44 PSINet, Inc. v. Chapman, 362 F.3d 227, 252 (4th Cir. 2004) (Niemeyer, J., dissenting).

30 Frank Rich, “Apres Janet, a Deluge,” The New York Times, March 21, 2004. 31 Telecommunications Research and Action Center v. FCC, 801 F.2d 501, 508 (D.C. Cir. 1986).

Counterpoint: Indecency Standards Should Be Abolished For All Media 45 American Civil Liberties Union v. Reno, 31 F. Supp. 2d 473, 498 (E.D. Pa. 1999).

32 Pacifica Foundation v. Federal Communications Commission, 556 F.2d 9, 29 (D.C. Cir. 1977), reversed, 438 U.S. 726 (1978).

46 Miller v. California, 413 U.S. 15, 32 (1973). 47 Ashcroft v. American Civil Liberties Union, 535 U.S. 564, 590 (2002) (Breyer, J., concurring in part).

Point: The Broadcast Indecency Rule Should Apply to All Media

48 Ashcroft v. American Civil Liberties Union, No. 03–218, at 11 (U.S. Sup. Ct., June 29, 2004).

33 Donna Rice Hughes, Kids Online: Protecting Your Children in Cyberspace. Grand Rapids, MI: Fleming H. Russell, 1998, p. 52.

49 American Civil Liberties Union v. Reno, 31 F. Supp. 2d 473, 496 (E.D. Pa. 1999).

34 Paris Adult Theatre I v. Slaton, 413 U.S. 49, 63 (1973).

50 Federal Communications Commission v. Pacifica Foundation, 438 U.S. 726, 770 (1978) (Brennan, J., dissenting).

35 Michael J. Copps, Remarks Before the National Association of Broadcasters Indecency Summit, Washington, D.C., March 31, 2004. Available online at http://hraunfoss.fcc.gov/edocs_public/ attachmatch/DOC-245610A1.pdf.

51 Marjorie Heins, Not in Front of the Children: “Indecency,” Censorship, and the Innocence of Media. New York, NY: Hill and Wang, 2001, p. 259. 52 Michael Chabon, “Solitude and the Fortresses of Youth,” The New York Times, April 13, 2004.

36 Jon E. Dougherty, “Broadcast Decency Regulations Coming to Cable,” NewsMax .com, May 4, 2004. 37 Final Report of the Attorney General’s Commission on Pornography. Nashville, TN: Rutledge Hill Press, 1986, p. 45. 38 Ibid. 39 Lawrence Magid, “Child Safety on the Information Highway.” Available online at http://www.safekids.com/child_safety .htm.

53 Phil Kloer, “For Carlin’s Catalog, The Odder the Better,” Atlanta JournalConstitution, May 7, 2004.

Point: Government Should Encourage the Rating and Filtering of Content 54 Ashcroft v. American Civil Liberties Union, No. 03–218, at 9 (U.S. Sup. Ct., June 29, 2004).

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NOTES 69 Nancy Willard, Filtering Software: The Religious Connection. Eugene, OR: University of Oregon, Center for Advanced Technology in Education, 2002, p. 2. Available online at http://responsiblenetizen.org/ onlinedocs/pdf/FSRCreport.pdf.

55 Commission on Child Online Protection. 2000. Report to Congress, 13. Washington, D.C.: Commission on Child Online Protection. Available online at http://www.copacommission.org/report/ COPAreport.pdf. 56 Ashcroft v. American Civil Liberties Union, No. 03–218, at 9 (U.S. Sup. Ct., June 29, 2004).

70 Marjorie Heins, Not in Front of the Children: “Indecency,” Censorship, and the Innocence of Media. New York, NY: Hill and Wang, 2001, p. 181.

57 Label for E-Mail Messages Containing Sexually Oriented Material. Final Rule. Federal Register 69:75, 21024, 21028 (April 19, 2004).

71 Fahrenheit 451.2: Is Cyberspace Burning? New York, NY: American Civil Liberties Union, 2002. Available online at http://www.aclu.org/news/NewsPrint .cfm?ID=9997&c=252.

58 United States v. American Library Association, 539 U.S. 194, 219 (2003) (Breyer, J., concurring).

61 Amitai Etzioni, “ACLU Favors Porn Over Parents,” The Wall Street Journal, October 14, 1998.

72 Victoria Rideout, Caroline Richardson, and Paul Resnick, Paul, See No Evil: How Internet Filters Affect the Search for Online Health Information. Executive Summary. Menlo Park, CA: Kaiser Family Foundation, 2002, p. 12. Available online at http://www.kff.org/entmedia/ loader.cfm?url=/commonspot/security/ getfile.cfm&PageID=14096.

62 Jennifer Linney, “Library Employees Settle Internet Porn Suit,” Trial 39:12, 86 (November 2003).

73 John Schwartz, “Internet Filters Block Many Useful Sites, Study Finds,” The New York Times, December 11, 2002.

63 Sarah E. Warren, “Filtering Sexual Material on the Internet: Public Libraries Surf the Legal Morass,” Florida Bar Journal 73:9, 52 (October 1999).

74 John Schwarz, “Internet Filters Used to Shield Minors Censor Speech, Critics Say,” The New York Times, March 19, 2001.

64 Testimony of Cliff Stearns Before the House Committee on Energy and Commerce, Subcommittee on Commerce, Trade, and Consumer Protection, May 6, 2004.

75 Censorship in a Box: Why Blocking Software Is Wrong for Public Libraries. New York, NY: American Civil Liberties Union, 2002. Available online at http://www.aclu.org/news/NewsPrint .cfm?ID=13624&c=252.

59 Robert Lipschultz, “Review: Websense Enterprise 5.1,” PC Magazine, March 16, 2004. 60 United States v. American Library Association, 539 U.S. 194, 204 (2003).

Counterpoint: Rating and Filtering Are Dangerous

76 Fahrenheit 451.2: Is Cyberspace Burning? New York, NY: American Civil Liberties Union, 2002. Available online at http://www.aclu.org/news/NewsPrint .cfm?ID=9997&c=252.

65 American Library Association v. United States, 201 F. Supp. 2d 401, 433 (E.D. Pa. 2002). 66 Ibid.

Conclusion

67 “Fahrenheit’ Rating Debated,” CBSNews.com, June 15, 2004. 68 American Civil Liberties Union v. Ashcroft, 322 F.3d 240, 267 (3d Cir. 2003).

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77 Alamadar Hamdani, “Technological Convergence—‘A Multiplicity of Sources’,” Houston Law Review 36:1, 343 (Spring 1999).


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NOTES 78 H.R. 3687, 108th Congress.

85 Marjorie Heins, Not in Front of the Children: “Indecency,” Censorship, and the Innocence of Media. New York, NY: Hill and Wang. 2001, p. 184.

79 H.R. 3717, 108th Congress. The Senate version was passed as an amendment to S.R. 2400, 108th Congress, a bill appropriating money for the Defense Department. 80 Public Law 107–317. 81 18 U.S.C. §2252B, created by Public Law 108–21, §521. 82 Kelly M. Doherty, “WWW.Obscenity.Com: An Analysis of Obscenity and Indecency Regulation on the Internet,” Akron Law Review 32:2, 292 (1999). 83 Phil Napoli, “America’s Interactive Past: Where Radio and Internet Meet.” Course materials for Fathom.com, “the source for online learning.” Available online at http://www.fathom.com/ feature/2197. 84 Fahrenheit 451.2: Is Cyberspace Burning? New York, NY: American Civil Liberties Union, 2002. Available online at http://www.aclu.org/news/NewsPrint .cfm?ID=9997&c=252.

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86 Michael J. Copps, Michael J. Remarks Before the National Association of Broadcasters Indecency Summit, Washington, D.C., March 31, 2004. Available online at http://hraunfoss.fcc .gov/edocs_public/attachmatch/DOC245610A1.pdf. 87 Commission on Child Online Protection. 2000. Report to Congress. Washington, D.C.: Commission on Child Online Protection. (statement of Commissioner Jerry Berman). Available online at http://www.copacommission.org/report/ COPAreport.pdf. 88 Marjorie Heins, Not in Front of the Children: “Indecency,” Censorship, and the Innocence of Media. New York, NY: Hill and Wang, 2001, p. 263. 89 John Schwartz, “Internet Filters Are: [Good] [Bad] [Both],” The New York Times, July 4, 2004.


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RESOURCES Books Heins, Marjorie. Not in Front of the Children: “Indecency,” Censorship, and the Innocence of Media. New York, NY: Hill and Wang, 2001. Hughes, Donna Rice. Kids Online: Protecting Your Children in Cyberspace. Grand Rapids, MI: Fleming H. Russell, 1998. Minow, Newton N., and Craig L. LaMay. Abandoned in the Wasteland: Children, Television, and the First Amendment. New York, NY: Hill and Wang, 1995.

Websites American Civil Liberties Union http://www.aclu.org Founded in 1920, the nation’s oldest and best-known civil-liberties organization. Works for the preservation of constitutional rights, including freedom of speech and expression.

American Library Association http://www.ala.org Organization for library personnel, established in 1876. Advocates the freedom to read, and opposes mandatory filtering of Internet terminals.

Center for Safe and Responsible Internet Use http://responsiblenetizen.org An organization that seeks non-regulatory measures encouraging young people to use the Internet safely and responsibly.

Concerned Women for America http://www.cwfa.org The nation’s largest women’s public policy organization. It aims to bring Biblical principles to American public policy. One of its six “core issues” is obscenity and pornography.

Electronic Privacy Information Center http://www.epic.org A public-interest research center established to focus attention on civil liberties, including free speech. Opposes government efforts to regulate speech on the Internet.

Enough is Enough http://www.enough.org An organization, founded by author and activist Donna Rice Hughes, that favors laws and other measures against online sexual predators and Internet pornography. Its sister site is www.ProtectKids.com.

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RESOURCES Federal Communications Commission http://www.fcc.gov The federal agency responsible for regulating the broadcast industry and punishing violators of the broadcast indecency rule.

Free Expression Policy Project http://fepproject.org An organization that advocates free speech and more democracy in the media and opposes censorship. It is part of the Democracy Program at New York University Law School.

Focus on the Family http://www.family.org An organization is dedicated to preserving traditional values and the institution of the family. It considers pornography a danger to families and communities.

Morality in Media, Inc. http://www.moralityinmedia.org An organization established to combat obscenity and to uphold decency standards. Strongly supports the broadcast indecency rule and laws regulating online pornography.

National Coalition Against Censorship http://www.ncac.org An alliance of literary, artistic, religious, educational, professional, labor, and civil liberties groups. It educates the public about the dangers of censorship and how to oppose it.

Parents Television Council http://www.parentstv.org An organization advocating “positive, family-oriented television programming” and enforcement of the indecency rule. Files indecency complaints and alerts the public to objectionable programs.

The TV Parental Guidelines http://www.tvguidelines.org Website explaining the TV ratings system and answering questions on the use of the v-chip.

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ELEMENTS OF THE ARGUMENT Cases and Statutes 18 U.S.C. §1464, A federal criminal statute prohibiting obscene, indecent, or profane broadcasts. The FCC relied on it as the basis for its broadcast indecency rule.

47 U.S.C. §223, A federal statute generally regulating obscene communications. Portions of it were added by the Communications Decency Act. Provisions regulating online indecency were found unconstitutional by the U.S. Supreme Court.

47 U.S.C. §231, The Children’s Online Protection Act Enforcement of provisions regulating Web content defined as “harmful to minors” has been blocked by the courts pending a final ruling on whether they are constitutional.

Action for Children’s Television v. Federal Communications Commission, 58 F.3d 654 (D.C. Cir. 1995) Upheld an act of Congress ordering the FCC to limit indecent broadcasts to the “safe harbor” hours between 10 p.m. and 6 a.m. In doing so, it also reaffirmed the broadcast indecency rule’s constitutionality.

Ashcroft v. American Civil Liberties Union, No. 03–218 (U.S. Sup. Ct., June 29, 2004) Refused to decide whether the Children’s Online Protection Act, which restricts Internet pornography, was constitutional. It directed the lower court to determine whether Internet filtering was an effective alternative to legislation.

Federal Communications Commission v. Pacifica Foundation, 438 U.S. 726 (1978) Held that the FCC’s broadcast indecency rule, which forbade indecent broadcasts when children were likely to be in the audience, did not violate the First Amendment’s guarantee of free speech.

Ginsberg v. New York, 390 U.S. 629 (1968) Upheld laws barring the sale of pornography to young people if it was “harmful to minors,” even though it was not obscene with respect to adults.

In the Matter of Complaints Against Various Broadcast Licensees Regarding Their Airing of the “Golden Globe Awards” Program, No. 04–43 (2004) An FCC order ruling that the use of the F-word in a television broadcast was indecent per se. The order suggests that other vulgarities might also be found indecent.

In the Matter of Industry Guidance on the Commission’s Case Law Interpreting 18 U.S.C. §1464 and Enforcement Policies Regarding Broadcast Indecency, No. 01–90 (2001) An FCC order that set out the guidelines the Commission used to determine whether a broadcast was indecent, and that described its enforcement procedure in indecency cases.

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ELEMENTS OF THE ARGUMENT Mainstream Loudoun v. Board of Trustees of the Loudoun County Library, 2 F. Supp. 2d 783 (E.D. Va. 1998) Ruled that a library board violated the First Amendment by requiring library patrons, regardless of age, to use filtered terminals and by failing to consider less-restrictive measures such as allowing adults to use unfiltered terminals.

Miller v. California, 413 U.S. 15 (1973) Set out a three-part test for determining whether a work is obscene: (a) An average person, applying “contemporary community standards,” finds that it appeals to an unhealthy interest in sex; (b) it depicts sex acts in a “patently offensive” way; and (c) taken as a whole, it lacks serious value.

New York v. Ferber, 458 U.S. 747 (1982) Upheld laws prohibiting works depicting young people in sexual situations, even if those works are not legally obscene.

Reno v. American Civil Liberties Union, 521 U.S. 344 (1997) Held that the Communications Decency Act, an effort to extend the broadcast indecency rule to the Internet, violated the First Amendment. It found that the characteristics of the broadcast media justifying the indecency rule were not present online.

United States v. American Library Association, 539 U.S. 194 (2003) Upheld a law requiring schools and libraries to install filters on Internet terminals as a condition of receiving federal funds for Internet access, provided that adults were allowed to use unfiltered terminals.

United States v. Playboy Entertainment Group, 529 U.S. 803 (2000) Held that a law requiring cable television operators to either scramble indecent programs or limit them to safe-harbor hours was unconstitutional because there was a less-restrictive alternative: asking the cable operator for a lockbox.

Terms and Concepts Broadcast Indecency Rule broadcast license Children’s Online Protection Act (COPA) “chilling effect” Code of Broadcast conduct Commerce Clause community standards concentration of ownership “culture war” Federal Communications Commission First Amendment

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APPENDIX Beginning Legal Research The goal of POINT/COUNTERPOINT is not only to provide the reader with an introduction to a controversial issue affecting society, but also to encourage the reader to explore the issue more fully. This appendix, then, is meant to serve as a guide to the reader in researching the current state of the law as well as exploring some of the public-policy arguments as to why existing laws should be changed or new laws are needed. Like many types of research, legal research has become much faster and more accessible with the invention of the Internet. This appendix discusses some of the best starting points, but of course “surfing the Net” will uncover endless additional sources of information—some more reliable than others. Some important sources of law are not yet available on the Internet, but these can generally be found at the larger public and university libraries. Librarians usually are happy to point patrons in the right direction. The most important source of law in the United States is the Constitution. Originally enacted in 1787, the Constitution outlines the structure of our federal government and sets limits on the types of laws that the federal government and state governments can pass. Through the centuries, a number of amendments have been added to or changed in the Constitution, most notably the first ten amendments, known collectively as the Bill of Rights, which guarantee important civil liberties. Each state also has its own constitution, many of which are similar to the U.S. Constitution. It is important to be familiar with the U.S. Constitution because so many of our laws are affected by its requirements. State constitutions often provide protections of individual rights that are even stronger than those set forth in the U.S. Constitution. Within the guidelines of the U.S. Constitution, Congress — both the House of Representatives and the Senate—passes bills that are either vetoed or signed into law by the President. After the passage of the law, it becomes part of the United States Code, which is the official compilation of federal laws. The state legislatures use a similar process, in which bills become law when signed by the state’s governor. Each state has its own official set of laws, some of which are published by the state and some of which are published by commercial publishers. The U.S. Code and the state codes are an important source of legal research; generally, legislators make efforts to make the language of the law as clear as possible. However, reading the text of a federal or state law generally provides only part of the picture. In the American system of government, after the

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APPENDIX legislature passes laws and the executive (U.S. President or state governor) signs them, it is up to the judicial branch of the government, the court system, to interpret the laws and decide whether they violate any provision of the Constitution. At the state level, each state’s supreme court has the ultimate authority in determining what a law means and whether or not it violates the state constitution. However, the federal courts—headed by the U.S. Supreme Court—can review state laws and court decisions to determine whether they violate federal laws or the U.S. Constitution. For example, a state court may find that a particular criminal law is valid under the state’s constitution, but a federal court may then review the state court’s decision and determine that the law is invalid under the U.S. Constitution. It is important, then, to read court decisions when doing legal research. The Constitution uses language that is intentionally very general—for example, prohibiting “unreasonable searches and seizures” by the police—and court cases often provide more guidance. For example, the U.S. Supreme Court’s 2001 decision in Kyllo v. United States held that scanning the outside of a person’s house using a heat sensor to determine whether the person is growing marijuana is unreasonable—if it is done without a search warrant secured from a judge. Supreme Court decisions provide the most definitive explanation of the law of the land, and it is therefore important to include these in research. Often, when the Supreme Court has not decided a case on a particular issue, a decision by a federal appeals court or a state supreme court can provide guidance; but just as laws and constitutions can vary from state to state, so can federal courts be split on a particular interpretation of federal law or the U.S. Constitution. For example, federal appeals courts in Louisiana and California may reach opposite conclusions in similar cases. Lawyers and courts refer to statutes and court decisions through a formal system of citations. Use of these citations reveals which court made the decision (or which legislature passed the statute) and when and enables the reader to locate the statute or court case quickly in a law library. For example, the legendary Supreme Court case Brown v. Board of Education has the legal citation 347 U.S. 483 (1954). At a law library, this 1954 decision can be found on page 483 of volume 347 of the U.S. Reports, the official collection of the Supreme Court’s decisions. Citations can also be helpful in locating court cases on the Internet. Understanding the current state of the law leads only to a partial understanding of the issues covered by the POINT/COUNTERPOINT series. For a fuller understanding of the issues, it is necessary to look at public-policy arguments that the current state of the law is not adequately addressing the issue. Many

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APPENDIX groups lobby for new legislation or changes to existing legislation; the National Rifle Association (NRA), for example, lobbies Congress and the state legislatures constantly to make existing gun control laws less restrictive and not to pass additional laws. The NRA and other groups dedicated to various causes might also intervene in pending court cases: a group such as Planned Parenthood might file a brief amicus curiae (as “a friend of the court”)—called an “amicus brief ”—in a lawsuit that could affect abortion rights. Interest groups also use the media to influence public opinion, issuing press releases and frequently appearing in interviews on news programs and talk shows. The books in POINT/COUNTERPOINT list some of the interest groups that are active in the issue at hand, but in each case there are countless other groups working at the local, state, and national levels. It is important to read everything with a critical eye, for sometimes interest groups present information in a way that can be read only to their advantage. The informed reader must always look for bias. Finding sources of legal information on the Internet is relatively simple thanks to “portal” sites such as FindLaw (www.findlaw.com), which provides access to a variety of constitutions, statutes, court opinions, law review articles, news articles, and other resources—including all Supreme Court decisions issued since 1893. Other useful sources of information include the U.S. Government Printing Office (www.gpo.gov), which contains a complete copy of the U.S. Code, and the Library of Congress’s THOMAS system (thomas.loc.gov), which offers access to bills pending before Congress as well as recently passed laws. Of course, the Internet changes every second of every day, so it is best to do some independent searching. Most cases, studies, and opinions that are cited or referred to in public debate can be found online— and everything can be found in one library or another. The Internet can provide a basic understanding of most important legal issues, but not all sources can be found there. To find some documents it is necessary to visit the law library of a university or a public law library; some cities have public law libraries, and many library systems keep legal documents at the main branch. On the following page are some common citation forms.

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APPENDIX Common Citation Forms Source of Law

Sample Citation

Notes

U.S. Supreme Court

Employment Division v. Smith, 485 U.S. 660 (1988)

The U.S. Reports is the official record of Supreme Court decisions. There is also an unofficial Supreme Court (“S. Ct.”) reporter.

U.S. Court of Appeals

United States v. Lambert, 695 F.2d 536 (11th Cir.1983)

Appellate cases appear in the Federal Reporter, designated by “F.”The 11th Circuit has jurisdiction in Alabama, Florida, and Georgia.

U.S. District Court

Carillon Importers, Ltd. v. Frank Pesce Group, Inc., 913 F.Supp. 1559 (S.D.Fla.1996)

Federal trial-level decisions are reported in the Federal Supplement (“F. Supp.”). Some states have multiple federal districts; this case originated in the Southern District of Florida.

U.S. Code

Thomas Jefferson Commemoration Commission Act, 36 U.S.C., §149 (2002)

Sometimes the popular names of legislation—names with which the public may be familiar—are included with the U.S. Code citation.

State Supreme Court

Sterling v. Cupp, 290 Ore. 611, 614, 625 P.2d 123, 126 (1981)

The Oregon Supreme Court decision is reported in both the state's reporter and the Pacific regional reporter.

State Statute

Pennsylvania Abortion Control Act of 1982, 18 Pa. Cons. Stat. 3203– 3220 (1990)

States use many different citation formats for their statutes.

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INDEX Abortion, 8 Acceptable-use policies, 81 Ackerman, Gary, 42 ACLU. See American Civil Liberties Union Action for Children’s Television v. Federal Communications Commission protection of minors, 52–53 Adelstein, Jonathan, 31 Age Restrictions credit card-based, 80–81 independently-issued, 81 and pornography, 54, 57, 61, 63–67, 79 purpose of, 25, 72, 82, 99 traditional, 54–55, 58 American Civil Liberties Union (ACLU), 88, 92 American Library Association bill of rights, 92 policies, 74–75, 78–79, 86–87, 89–90, 92–93 American Library Association v. Pataki protection of minors, 70–71, 78 Aschcroft v. American Civil Liberties Union and the COPA, 56–57 Ashcroft v. Free Speech Coalition virtual child pornography, 45–46 Associated Press, 31 Bad Frog Brewery, Inc., v. New York State Liquor Authority commercial speech, 97–98

Bazelon, David, 44 Berman, Jerry, 103 Blackman, Harry, 39 Board of Education v. Pico censorship, 86 Boehlert, Eric, 30 Bono violations by, 19 Bork, Robert, 44 Breaux, John, 50 Brennan, William, 27, 37, 39, 67 Breyer, Stephen, 57, 59, 63, 75, 99 Brinkema, Leonie, 86–87 Broadcast media, 12, 25, 29 executives, 13–14 and indecency rule, 19–20, 22, 30, 34–64, 70, 94 obscenity in, 17 one-way, 76 private, 14, 25, 101 regulation, 10, 17, 20–21, 23, 28, 33, 47, 79, 82, 92, 103 responsibilities of, 32, 95, 100 standards, 17, 28, 42 Bruce, Lenny, 69 Buckley, James, 52–53 Butler, Alfred, 26 Butler v. Michigan pornography, 26 Capital punishment, 6, 8 Carlin, George violations of, 17, 38, 67, 69 Carlin, Peter Ames, 30 Carroll, Lewis, 97 Cato Institute, 42 CDA. See Communications Decency Act (CDA) Censorship, 68–70 forms of, 44, 90–93, 109 private, 75, 100–2

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Center for Democracy and Technology, 103 Chabon, Michael, 68 Child Online Protection Commission findings, 75–76, 80–81 Children’s Internet Protection Act (CIPA) and filter software, 74–75 Children’s Online Protection Act (COPA), 21–22, 106–8 critics of, 63–64, 77, 99 definitions in, 63, 80 enforcement of, 56–58, 62, 65–66, 106–7 supporters of, 49, 56–57, 72, 85–86 Civil liberties supporters of, 20–21, 56, 66, 86, 88, 91, 95, 106 Clear Channel Communications violations of, 30, 34, 104–5 Clinton, William, 44 Code of Broadcast Conduct, 103 Communication forms of, 10, 28 Communications Decency Act (CDA) indecency rule and the internet, 19, 54, 66–67 overturning of, 72, 102, 106–7 passing of, 48 Comstock, Anthony, 69 Constitution, United States Amendments, 7, 11, 16–17, 20–22, 27, 37, 39–40, 45, 52, 59, 64–65, 66, 68–69, 71, 74–77, 83, 86, 88, 90, 97–98


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INDEX Bill of Rights, 7, 21, 48, 77 challenges, 16–18, 22–23, 25–27, 35, 39, 41, 45–46, 56–57, 59, 62–67, 70, 72, 74–76, 82, 86, 88, 91, 96–97, 102, 107 commerce clause, 70–71 COPA. See Children’s Online Protection Act (COPA) Copps, Michael and the FCC, 12, 50, 103, 105 Corn-Revere, Robert and the FCC, 41 Defense Department and ARPANet, 15 Domains and Zones “Harmful to Minors” top-level, 81 “Kid-friendly,” 81 “Kid-safe” top-level, 81 “Dot Kids Implementation and Efficiency Act” (2002), 99 Douglas, William, 21, 27 Dual TV network rule, 31 Eclipse Enterprises, Inc., 96 Education Department, 28 Edwards, Harry, 53 Enforcement, 29–34, 41–44 of COPA, 62 and the FCC, 17, 29, 32–33, 35, 40–42, 47, 95 lack of, 58–59 Evergreen Media Corporation, 32 Exon, James, 54–55 Fairness Doctrine, 42 FCC. See Federal Communications Commission (FCC)

Federal Communications Commission (FCC), 16, 31, 35, 60 complaints to, 10, 12, 33–34, 42–43, 64 critics of, 11–12, 19, 29–30, 33, 35, 37, 40–41, 43, 47 enforcement, 17, 29, 32–33, 35, 40–43, 47, 95 function of, 10, 15, 18–19, 34 rulings, 13–14, 17–18, 28, 31–33, 35–36, 38–39, 41, 50–53, 61, 99–100, 103–5 Federal Communications Commission v. Pacifica Foundation and constitutional indecency rules, 18, 28, 36–39, 44, 46–47, 52–53, 67, 94–95 Federal Radio Commission, 14 Federal Trade Commission (FTC), 76 Ferber, Paul, 45–46 Filtering systems critics, 89–93 and the first amendment, 74–77 function of, 72–73, 99 in libraries and schools, 74–75, 86–88, 91, 93 software, 58, 64, 71, 73–74, 77, 82, 85–89, 103 supporters, 77, 83 technology, 57, 75, 77–79, 81, 85, 102–3 text-based, 80 URL-based, 80 voluntary, 7, 93 First Amendment, 39 guarantee, 7, 64–65, 68–69, 71, 83

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protection, 16–18, 20–22, 27, 35, 37, 40–41, 45, 52, 62–63, 66, 74–77, 97–98, 100 violations to, 11, 43, 86–88, 90, 102, 109 Fortas, Abe, 27 Fowler, Mark and the FCC, 19 Free speech, 10, 12–23 and the first amendment, 11, 40, 35, 37, 39, 75, 87–88, 90, 93, 98, 102, 104 importance of, 11, 74, 78 and the indecency rule, 18, 34, 40–41, 62–64 FTC. See Federal Trade Commission Furchtgott-Roth, Harold, 36 Ginsberg, Sam, 26–27 Ginsberg v. New York, 26–27 pornography, 17, 22, 26–27, 49, 66–67, 94 Gore, Al, 44 Gotti, John, 32 Government, United States, 12 and the broadcast industry, 13–14, 18–21, 23, 30, 42, 48, 53, 94–97, 104–5 censorship, 93, 102 control of, 11, 44 and internet regulation, 16, 48, 50, 56–59, 64, 71–72, 74, 78–80, 82, 89, 99, 106 and protection of minors, 17, 22, 27, 35, 45–46, 52, 60, 62–63, 65, 67, 94, 103, 105 and religious beliefs, 88 responsibilities of, 7–8, 35, 54, 61, 109


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INDEX Hays Code, 91 Hazlett, Thomas, 42 Heins, Marjorie, 88, 106 Hilden, Julie, 13 Hine, Thomas, 68 Hughes, Donna Rice, 48 Identity theft, 16 Indecency, 13–15, 20–23 availability, 49–50 critics, 12, 30, 34, 37, 40–44, 47, 58, 79 debate, 10 definition, 17, 20, 32, 37–38, 40, 53, 65–66 and family rights, 65–68 future, 30, 94–109 laws, 58–59, 62–68, 95, 103 legal basis, 44, 46–47 penalties of, 19, 33, 37 regulation, 16–19, 21–23, 28, 33, 46–47, 55, 59, 70–71, 94–109 rule, 11–12, 19, 32–64, 70, 94–95, 105 standards, 33, 42, 62–71 Industry concentration, 100–2 Industry rating system, 80 Infinity Broadcasting, 19, 95, 105 Interactive Digital Software Association v. St. Louis Country, 96–97 Internet abuse, 16 cafes, 50 human rating of, 84–89 origins of, 15–16 pornography on, 19, 46, 48–49, 51, 54–59, 61, 64–67, 70–71, 73–74, 76, 78–83, 85–87, 89–90, 93, 99, 106–8

providers, 55, 63, 73, 77, 88, 102 regulations, 16, 19–21, 48–49, 54, 63–64, 67, 71, 74–75, 91, 99–100, 102, 104 reviews of, 72–73, 84–89 supporters, 55, 89 Jackson, Janet violations by, 10, 12–13, 19, 30, 50 Jones, Sarah, 69 Joseph Burstyn, Inc. v. Wilson and the first amendment, 20 Joyce, James Ulysses, 69 Justice Department, 33 Kaiser Family Foundation, 89–90 Kennedy, Anthony, 46, 57 Kennedy, John F., 60, 74–75 Krug, Judith, 90 Legislation, 102–9 Lessig, Lawrence, 102, 107 Local radio ownership rule, 31 Local television multiple ownership rule, 31 Magid, Larry, 51 Mainstream Loudoun v. Board of Trustees filtering policies, 86–87 Martin, Kevin and the FCC, 99 Matter of Clear Channel Communications, Inc., 104–5

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Media, 11, 17 legal challenges, 18–23 ownership, 31, 34, 43, 101 power, 42 rise and regulation of, 12–16, 43 types, 10, 12–16, 20, 25, 28–30, 41, 49–50, 62–71, 79, 91, 95–100, 106 Miller v. California, 20–21 definition of obscene, 17, 20–21, 37, 51, 63 Minneapolis Public Library, 78 Minow, Newton and the FCC, 29, 60 “vast wasteland” speech, 60–61 “Miracle, The” (play), 20 Modern American Obscenity Law, 20–21 Moore, Michael, 85 Morality in Media, 38, 42, 59 Motion Picture Association of America, 79 rating system, 84, 85, 91 National Association of Broadcasters, 60 National Institute for Media and the Family, 82 National television ownership rule, 31 Newspaper/broadcast cross ownership prohibition, 31 New York v. Ferber child pornography, 45–46 Niemeyer, Paul, 71 Notice of Apparent Liability, 33


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INDEX Not in Front of the Children: “Indecency,” Censorship, and the Innocence of Media (Heins), 88 Obscenity, 11 defined, 17, 20–21, 27, 37–38, 51–52, 85, 87 laws, 20–21, 26, 38, 45, 63, 69, 85 regulation, 16–18, 25, 41, 45, 51 speech, 16, 34, 39 standards, 26–27 works, 16, 45, 64, 79, 82, 108 O’Connor, Sandra Day, 46, 67 Olsen, Theodore, 49 Ose, Doug, 95 Pacifica Foundation, 38–39, 42 Paragon Media Strategies, 58 Parents Television Council (PTC), 12, 34, 42, 50 “Patently offensive” standard, 44 Peters, Robert, 59 PICS. See Platform for Internet Content Selection Platform for Internet Content Selection (PICS) purpose of, 73, 102 “Policy on Internet Sexual Harassment,” 86 Pollock, Jackson, 97 Pornography child, 45–46, 85 critics of, 16, 20, 50 in films, 79 online, 19, 46, 48–49, 51, 54–59, 61, 64–67, 70–71, 73–74, 76, 78–83, 85–87, 89–90, 93, 99, 103, 106–8

print, 51 protection for young people, 17, 25–27, 45, 50–51, 54–57, 59–60, 67 regulations, 59, 61, 65, 69–70, 74, 76, 83 sale of, 26–27, 56, 63, 71, 107 technology, 45–46 on television, 30 Powell, Lewis, 39 Powell, Michael and the FCC, 10, 12–13, 42–43, 104 Prejean, Helen, 6 Preska, Loretta, 70 Profanity guidelines, 40, 69 at sporting events, 98 violations of, 17–19, 38, 73, 95 PROTECT Act, 99 ProtectKids.com, 49 PSINet v. Chapman harmful to minors material, 70–71 PTC. See Parents Television Council “Public Notice,” 42 Queen v. Hicklin, The and obscene work, 16, 26, 69 Radio commercial, 31 consumers, 58 indecency on, 10, 17–19, 24, 30–32, 35, 38–39, 41 origins, 12–14, 25 regulation, 10, 17, 23, 28, 31, 44, 46, 62, 100 Radio/Television crossownership restriction, 31

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Rating systems critics, 84–93 and the first amendment, 74–77, 83 function of, 37, 60, 72–73 industry system, 58, 80, 65, 73, 82, 92–93, 102 of internet content, 84–89, 92–93 self, 73, 79, 82, 88, 90 supporters of, 77, 79, 83 third-party, 73, 80 voluntary, 72, 93 Reagan, Ronald, 19 Reed, Lowell, 62, 65 Rehnquist, William, 74 Relativism, 6 Reno v. Civil Liberties Union and the CDA, 19–21, 48, 66–67, 106 Responsible Netizen Project, 87 Rich, Frank, 13, 44 Rivera, Geraldo, 32 Roth v. United States definition of obscenity in, 20–21 “Safe harbor hours, 52–53, 59 Scalia, Antonin, 46, 51 Schoenberg, Arnold, 97 Self-censorship, 40 Self-Regulation, 79, 82, 102–3 Sexual content, 57, 68 on film, 45 online, 19, 46, 48–49, 51, 54–59, 61, 64–67, 70–71, 73–74, 76–83, 85–87, 89–91, 93, 99, 103, 106–8 on radio, 38, 46 rulings on, 16–17, 19, 37, 45–46, 49, 108 on television, 30, 32, 34, 44, 50–51, 65


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INDEX Society, United States and civil rights, 11 debates of, 6, 8 and minors, 22, 24–25, 28, 62, 66, 68 responsibilities, 29, 32, 37–38, 109 and sex, 16, 27, 49–50, 83, 93 Sosa, David, 42 Souter, David, 75 Spam emails, 16, 82, 91 “Spectrum scarcity,” 44, 53 Spencer, James, 70–71 Stalking, 16, 65 Stearns, Cliff, 82 Stern, Howard violations by, 19, 46, 95, 104–5 Stevens, John Paul, 18, 38–39, 67, 75 Stewart, Potter, 20, 27, 39 Strict scrutiny standard, 23, 58 Suffrage for minorities, 8 for women, 8 Super Bowl XXXVIII, 29 fallout from, 10, 12–13, 16, 19, 22, 30, 40, 43–44, 95, 103 Supreme Court, United States, 8 definition of obscenity, 17, 20–21, 87 and the FCC, 15, 18–20, 28, 36–39, 44, 59, 72, 94–96, 102

and the first amendment, 7, 11, 16–17, 20–22, 70–71, 74–75, 77–78, 86, 90, 100 and pornography, 26–27, 45–46, 49, 54–55, 58, 86–87 and the protection of minors, 25–27, 48, 52–53, 56–57, 64–67, 74, 76, 94, 98, 106 “Symbolic speech,” 11 Technology, 36, 60, 107, 109 age-verification, 55 filtering, 57, 75, 77–79, 81, 85, 102–3 internet, 16, 55, 67, 71, 80–81, 102 monitoring and timelimiting, 81 and pornography, 46–47, 55, 59, 91, 99 Television cable, 15, 22, 29, 41, 47–48, 50, 52–53, 55, 58, 61, 63, 65, 71, 94–97, 99–100, 103 indecency on, 10, 22, 24, 29–31, 34–35, 39, 41 network, 15, 22, 29, 50, 53 pornography on, 48, 55, 58, 65 regulation, 10, 15, 22–23, 28, 31, 46–47, 62, 79, 82, 84, 92, 100 satellite, 48, 50, 63, 65

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Television Code (1952), 28 Text-based filtering, 80 Third-party rating, 80 Thomas, Clarence, 46 Timberlake, Justin violations by, 10, 12–13, 30 Tristani, Gloria and FCC, 33 2 Live Crew, 69 Ulysses (Joyce), 69 United States v. American Library Association and the first amendment, 74–77 United States v. Playboy Entertainment Group and safe-harbor hours, 59 URL-based filtering by providers, 80 by users, 80 V-chip, 44, 53, 55, 58, 65, 79, 82, 103 Viacom, 34 Video game industry violence in, 82, 84, 96–97 White, Byron, 45 Willard, Nancy, 87, 90–91 Winfrey, Oprah, 32 World Wide Web Consortium, 73


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PICTURE CREDITS page: 31: Associated Press Graphics 43: © Kevin Lamarque/Reuters/CORBIS 101: © Getty Images

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CONTRIBUTORS PAUL RUSCHMANN, J.D., is a legal analyst and writer based in Canton, Michigan. He received his undergraduate degree from the University of Notre Dame and his law degree from the University of Michigan. He is a member of the State Bar of Michigan. His areas of specialization include legislation, public safety, traffic and transportation, and trade regulation. Mr. Ruschmann is also the author of Legalizing Marijuana, Mandatory Military Service, and The War on Terror in the P OINT /C OUNTERPOINT series. He can be found on line at www.PaulRuschmann.com. ALAN MARZILLI, M.A., J.D., of Durham, North Carolina, is an independent consultant working on several ongoing projects for state and federal government agencies and nonprofit organizations. He has spoken about mental health issues in thirty states, the District of Columbia, and Puerto Rico; his work includes training mental health administrators, nonprofit management and staff, and people with mental illness and their family members on a wide variety of topics, including effective advocacy, community-based mental health services, and housing. He has written several handbooks and training curricula that are used nationally. He managed statewide and national mental health advocacy programs and worked for several public interest lobbying organizations in Washington, D.C., while studying law at Georgetown University.

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The FCC and Regulating Indecency (Point Counterpoint)

The FCC and Regulating Indecency (Point Counterpoint)

Regulating Violence in Entertainment (Point Counterpoint)

Search And Seizure (Point Counterpoint)

Drugs and Sports (Point Counterpoint)

Animal Rights (Point Counterpoint)

Welfare Reform (Point Counterpoint)

Media Bias (Point Counterpoint)

Blogging (Point Counterpoint)

Immigration Policy (Point Counterpoint)

Election Reform (Point Counterpoint)

Amateur Athletics (Point Counterpoint)

Hate Crimes (Point Counterpoint)

Gun Control (Point Counterpoint)

Gun Control (Point Counterpoint)

Educational Standards (Point Counterpoint)

Miranda Rights (Point Counterpoint)

Immigration Policy (Point Counterpoint)

Smoking Bans (Point Counterpoint)

Education Reform (Point Counterpoint)

Disaster Relief (Point Counterpoint)

Food Safety (Point Counterpoint)

Educational Standards (Point Counterpoint)

Prisoners' Rights (Point Counterpoint)

Food Safety (Point Counterpoint)

Blogging (Point Counterpoint)

Protecting Ideas (Point Counterpoint)

Gun Control (Point Counterpoint)

Animal Rights (Point Counterpoint)

The FCC and Regulating Indecency (Point Counterpoint)