Alyson Sanders
Tcom384 Section 001
March 13,
2006
Regulating Indecency
Obscenity, indecency, and profanity are three very different terms, in the eyes of the Federal Communications Commission (FCC). Out of the three, obscenity is the only unprotected idea. Indecency and profanity are both protected, minimally, but protected none the less. Why are indecency and profanity viewed differently from obscenity, and what makes profanity special enough to have been separated from indecency and made into its own category?
The first U.S. Supreme Court obscenity case was Roth vs. U.S. which took place in 1957. The man under prosecution argued that obscenity should be protected under his first amendment rights. The Supreme Court ruled that unless the whole of the material, applied in a contemporary community standard is of a prurient interest, it is not protected by the First Amendment [1]. Despite this first ruling over the term of “obscenity,” the current standard for determination was defined in the 1973 case Miller v. California. A three-part test was created for each state on its own to determine if a particular case is dealing with obscenity. Part one is the test outlined in Roth vs. U.S., part two is whether the work depicts or describes in a patently offensive way, sexual conduct specifically defined by the applicable state law, and part three is whether the work taken as a whole lacks serious literary, artistic, political, or scientific value. Miller v. California upheld that obscenity is not protected by the First Amendment and allows each state to decide based on its own laws if the content in question is “obscene [2].”
Indecency is defined as material that is not quite obscene but that is still offensive. Indecent material has partial protection by the First Amendment. The current definition of indecency first started with FCC v. Pacifica in 1978. The Supreme Court upheld the FCC’s definition of indecency: “Language that describes in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities and functions at times of the day when there is a reasonable risk that children may be in the audience [3].” Indecency is not banned from media broadcasting, but rather indecency is routed to times when children are least likely to be subject to the material. This is just one of the ways the FCC enforces its indecency policy.
Profanity was not defined as separate from indecency until 2004. Before that time, they were ruled as the same. Profanity was brought out by the “f-word” being said during a time that was not “safe-harbor,” as enforced by the FCC. Because the Pacifica test had labeled obscenity, indecency, and profanity with separate definitions, profanity was to be dealt with on its own. Profanity’s definition is as follows: “Language so grossly offensive to members of the public who actually hear it as to amount to a nuisance[4].” In 2004, this separate definition was upheld and profanity is now judged separate from indecency.
The FCC is not allowed to monitor any broadcasts, looking for obscenity, indecency, and profanity on its own, so the regulation process is that of a complaint system. The FCC accepts any and all complaints filed against a particular broadcast. Each complaint is judged upon the material’s context, and then if deemed necessary, actions are taken with the broadcast in question.
The internet is one area of “broadcast” that has strong first amendment protection. Many times congress has tried to apply rules or regulations to the internet, but have failed to bring to surface a sufficient argument. There are two main problems with trying to regulate the internet: one, the internet is an international entity; two, protecting children can essentially infringe on the rights of free adults.
The internet is a world-encompassing ever-updated, constantly running publication available to anyone with access to a computer and a phone line (at the basic level). When congress tries to put regulation on something that takes place all over the world, they end up only affecting that which is published within the United States. There are still many websites that can bypass these regulations completely with no consequence as they are not ruled under U.S. law.
Regulation dealing with the internet is mostly argued for the protection of children. Congress feels that protecting minors is a compelling government interest. Unfortunately, there is little in the way of getting around the two main issues. The internet is a commodity purchased by the individual, and the consumer has the right and responsibility to censor him or herself from the material they do not wish to view. Children do not always have the ability to discern for themselves, but argumentatively, because this is a purchased service - this is where the parent or guardian should step in and discern for the child in question.
In 1998 a bill called the Child Online Protection Act (COPA) was passed but subsequently blocked by the courts [5]. COPA was trying to be responsible for protecting children from sexual material on the internet, but the courts ruled that, were the law enforced, the effect(s) would be so minimal so as to render the law insignificant. Ever since, congress has tried to push COPA forward, each time being denied. In 2004, Ashcroft v. American Civil Liberties Union stated that COPA was likely to be unconstitutional. Furthermore, the Commission created to further research the plausibility of COPA had already proved that current existing filtering software is already of great sufficiency to warrant COPA even less useful than before [6].
Personally, I believe that because the internet must be purchased to gain access in one’s own home (save for instances of free access in libraries), that the individual should be allowed to chose what he or she may view. Just like in instances of cable television, there should be no censorship on materials that already have the capacity to be censored by the paying customer.
Understandably, some parents are not always going to be aware of the
“dangers” of the internet, or some parents may be neglectful of censoring
obscene or indecent materials from children. I feel in these cases, the
parents should be held responsible for inflicting any damages upon their
children, because the parents paid to have the service installed in their own
home and allowed the information to be available. While it is a stretch of
an analogy, I liken it to a child scalding itself in the bath tub because a
parent left their child unattended. The parents cannot sue the maker of
their water heater, because they paid for that commodity of hot water to be
available in their home – and thus to their children. They were neglectful to
shield their child from the danger, and instead reap the consequences.
While the government feels they have a compelling interest to shield children
from indecent material, it is not going to better the community in the long run
by promoting laziness among parents/guardians.
Endnotes
Bibliographical Essay
I first looked up the Pacifica case on the FindLaw website listed on the tcom384 website. Linked to it is information about the previous two cases, Roth v. United States and Miller v. California. From there, I searched <http://www.google.com/> and <http://www.fcc.gov/> for information regarding the Child Online Protection Act. I learned more about it from a <http://www.wikipedia.org/> article, and from there searched FindLaw again for specific cases relating to COPA. Again, I searched <http://www.google.com/> while looking for information on the Golden Globes ruling. I found a link in the list to the Thomas/U.S. Congress website listed on the tcom384 website. The FCC MO&O was located on <http://www.fcc.gov/>.