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Almost 32 years have passed since the broadcast of George Carlin’s “Filthy Words” monologue, which laid the underpinnings for the Federal Communications Commission’s recent interest in tampering with content regulation to protect children from “indecency” on the air. In the ensuing decades, the FCC has delivered a spate of decisions that try to draw the line on indecency. But these rulings have actually done little to clarify the indecency standard. Meanwhile, Congress, which has ultimate authority in prescribing indecency policy, has forgone multiple opportunities to provide guidance on what is indecent and what is not. Instead, it has engaged in a saber-rattling exercise. The amount of the possible fine has been raised this year to $500,000 per violation, and last week Rep. F. James Sensenbrenner Jr. (R-Wis.), who chairs the House Judiciary Committee, even suggested possible criminal penalties. And Sen. Ted Stevens (R-Alaska) and Rep. Joe Barton (R-Texas), who chair the Senate and House Commerce committees, have proposed extending indecency regulations to cable and satellite subscription services. In this uncertain climate, broadcasters have felt the chill. They have begun to resort to self-censorship as the only realistic means of avoiding penalties for airing programming that might be found indecent. There has to be a better way. NO CLEAR LINE In its indecency enforcement over the past few years, the FCC focused first on radio shock jocks. Broadcast companies that aired Howard Stern’s graphic sexual descriptions and innuendo, Opie and Anthony’s “sex in St. Patrick’s Cathedral” contest, and a variety of morning comedy bits that often bordered on the repugnant met with sharp disapproval and harsh fines. More recently, television has moved to the forefront, with the exposure of Janet Jackson’s breast, Bono’s excited exclamation during the Golden Globes awards show, a “desperate housewife” jumping into the arms of an Eagles wide receiver before “Monday Night Football,” and the suddenly controversial airing of “Saving Private Ryan.” As it happens, the FCC found that the Jackson and Bono incidents were indecent, while the other two were not, leaving broadcasters with no clearly discernible line of what is actionably indecent and what is not. SAFE HARBOR Fortunately, the FCC’s decision regarding the 2004 Veterans Day showing of “Saving Private Ryan” gives a hint of the only possible long-term solution to broadcasters’ uncertainty�an uncertainty that notably prompted 66 television stations to decline to air the movie. That solution is a safe harbor from indecency sanctions for broadcasters that give repeated, explicit, and prominent prior notice that adult content is about to air. Under such an “advance warning” safe harbor, broadcasters that give such notice would be protected from FCC fines for presenting content that otherwise might be found to be indecent. The FCC already has implicitly recognized this concept, as it figured prominently in the “Saving Private Ryan” decision. Before the movie aired, ABC repeatedly warned viewers of the adult language to follow. This warning formed a key basis for the FCC’s decision that the broadcast was not indecent. But the “Saving Private Ryan” decision itself only made the indecency standard more murky. Television broadcasters now know that they can air a program containing just about every offensive word in the English language as long as the program is a serious war movie and a prior warning is given. Does the decision only apply to serious war movies, or does it also apply to the hundreds of other movies�some of them Academy Award winners�that use similar language? What about radio programs? If prior notice is given for a serious radio program that uses vulgar language, does that protect it from being judged indecent? The FCC itself acknowledges that no one can state with certainty in advance what is indecent under the commission’s current guidelines. The best that the FCC can tell us is that prohibited indecency depends upon the context in which the words, ideas, or pictures are presented. So we know that a serious war movie in which the word “fuck” is strongly and repeatedly used is acceptable for prime-time television broadcast. But we can’t generalize much from that. The FCC staff’s initial decision found Bono’s exclamation of “fucking brilliant” during the Golden Globes not actionably indecent as it did not describe sexual or excretory organs. After public outcry and political pressure, however, the Bono decision was reversed by the commissioners, with a determination that the use of the word “fuck” in any context describes sexual activities. COMMON DISCOURSE Beyond the problem of reconciling cases that seem to say that the same word is harmful to children in an awards show but not in a war movie, broadcasters face a basic dilemma. On one hand, common discourse in our society, for better or worse, has moved far beyond what the FCC indecency standard appears to require for television and radio. The horrific word used by Bono is used just as frequently today by many young adults as were “damn,” “Jesus,” or “crap” years ago by today’s baby boomers. To remain competitive, broadcasting has necessarily evolved from the family entertainment vehicle it was in the 1950s and 1960s. Broadcast stations must present cutting-edge, exciting programming that appeals to various demographics. Restricting broadcasters to content suitable for children is neither practical nor desired by many viewers and listeners. On the other hand, what is suitable or even commonplace for young adults is unquestionably unsuitable for children, and this rationale provides the federal government with grounds for intervention. Broadcast stations will restrict their programming however the federal government wishes if the alternative is a possible loss of license. But other media that compete with TV and radio for viewers’ attention are not shackled by the indecency laws restraining broadcasters. Newspapers and magazines can print essentially whatever they please. Video stores can carry a wide range of movies and entertainment. Cable, satellite, and the Internet all offer a vast array of content. Some of the content offered by each of these media outlets is offensive, repugnant, and wholly unsuitable for children, yet the First Amendment protects its dissemination. ADVANCE WARNING The same opportunity to carry a wide range of content should be available to broadcast stations through the use of indecency advance warnings. Historically, a prior warning by itself has never been enough to curb FCC sanctions against broadcasters. In fact, George Carlin’s “Filthy Words” monologue, which drew a sanction from the agency, was preceded by a brief warning. Nevertheless, Congress has the statutory authority to create a safe harbor. An advance-warning safe harbor presents not only a workable solution to the ambiguity of the current indecency scheme but also an alternative to the current chilling of speech. The public, broadcasters, and First Amendment values would all be well-served by a safe harbor where clear and frequent warnings precede adult content. Some will argue that this gives broadcasters a free pass to be offensive and crude. The broadcast industry, however, has its own nongovernmental controls against offensive programming. Listeners and viewers can always wield market power by utilizing the channel selector and the “off” switch, as well as by boycotting advertisers’ products. For those who believe that the government’s role is to raise the intellectual level of television and radio, the advance-warning safe harbor would be irrelevant. Moreover, deploying the strong hand of government to affect the caliber of broadcast programming is perhaps the use of the government’s licensing role that is most offensive to the First Amendment, since it has nothing to do with protecting children. Warnings by broadcasters of forthcoming adult content largely fulfill the government’s perceived role as a protector of children in a way that is much less offensive to the First Amendment than sanctions and fines. Ideally, government and broadcasters should turn toward a solution that will not chill the presentation of cutting-edge, exciting programming on radio and television. Indeed, broadcasters should take the lead in asking Congress for codification of the advance-warning safe harbor. It would be a tremendous improvement over the current, politically expedient effort to make television and radio non-offensive to everyone, an effort that may well end up making them interesting to no one. John Garziglia, a member of Womble Carlyle Sandridge & Rice, is based in the firm’s D.C. office, where he represents broadcasters in matters of communications law. Micah Caldwell is a recent graduate of American University Washington College of Law.

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