Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: WEDNESDAY, November 24, 1993 TAG: 9311240173
SECTION: NATIONAL/INTERNATIONAL PAGE: A1 EDITION: METRO
SOURCE: The Washington Post
DATELINE: LENGTH: Medium
A three-member panel said the ban is unconstitutional because it is too broad and abridges the First Amendment rights of broadcasters. The U.S. Court of Appeals has struck down "indecency" policies by Congress and the Federal Communications Commission on two earlier occasions.
A coalition of broadcasters, movie producers and public-interest groups had challenged the latest indecency policy, which was written by the FCC at the direction of Congress. Representatives of the coalition said Tuesday's ruling would have little effect on program content because the FCC rules had been held up pending the court's decision.
While the court's decision restates its previous position, experts say it illustrates how hard it is for politicians to regulate sex and violence on radio and television. The appeals court's decision recognizes that it is possible for the FCC to construct such rules, but it didn't say how.
The ruling also could be a setback for congressional efforts to regulate violence on television. One measure proposed by Sen. Ernest Hollings, D-S.C., would ban violent programming during hours when children are likely to be watching, a measure modeled on the FCC indecency rule. Attorney General Janet Reno has said that such legislation would be constitutional - an assertion called into question by Tuesday's decision.
"If both Congress and the FCC have trouble banning indecent speech, it tells us that it's next to impossible for them to ban violent speech, which has always gotten a higher degree of protection from the courts," said Robert Peck, legislative counsel for the American Civil Liberties Union, one of 17 organizations and businesses that filed against the FCC policy.
The FCC defines indecent programs as those containing language or material that describes "in terms patently offensive as measured by contemporary community standards . . . sexual or excretory activities or organs." It doesn't address violent material. Obscene broadcasts are prohibited under a different legal standard and were not at issue.
The FCC has invoked various incarnations of its indecency policy five times since 1988 to fine the employer of radio disc jockey Howard Stern more than $1.2 million. The court ruling should invalidate those fines, said Timothy Dyk, the attorney who represented the coalition, which included Stern's company, Infinity Broadcasting Corp.
"Whether they [FCC officials] can move forward with fines imposed on old regulations is open to serious question," said Dyk. However, the court left open the possibility that the FCC could rewrite its rules, as long as they are more narrowly tailored.
FCC officials said they had not read the court's ruling Tuesday and had no comment.
At issue in the case was the FCC's "safe harbor" policy that allowed broadcasters to air indecent material from midnight to 6 a.m. only.
by CNB