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FCC Programming Rules: Obscenity

| April 3, 2012

By Steven J. J. Weisman
Legal Editor

BOSTON — “At the heart of the First Amendment is the recognition of the fundamental importance of the free flow of ideas and opinions on matters of public interest and concern.  The freedom to speak one’s mind is not only an aspect of individual liberty – and thus a good unto itself – but also is essential to the common quest for truth and the vitality of society as a whole.”  It is interesting to note that this lofty statement of the principle of free speech came out of a case involving Hustler Magazine.  Hustler Magazine v. Falwell 485 U.S. 46, 50-51.

However, although free speech is exalted under our Constitution, it is not unlimited.  Title 18 U.S.C.  Section  1464 prohibits “obscene, indecent or profane language by means of radio communication.”  The duty to enforce this regulation is given by Congress to the Federal Communications Commission (FCC).  The consequences of violation of this law are potentially quite severe, ranging from the imposition of monetary fines, referred to by the FCC as “forfeitures” to even the revocation of the broadcasting station’s license to broadcast.   The amount of the fine or forfeiture is determined by consideration of the “nature, circumstances, extent and gravity of the violation and with respect to the violator, the degree of culpability, any history of prior offenses, ability to pay and such other matters as justice may require” according to the FCC’s Forfeiture Policy Statement.

Following the Janet Jackson wardrobe malfunction episode, in which ultimately, the FCC’s fines were overturned in court, the law setting the maximum fine for individual obscenity, indecency and profanity violations was increased from $32,500 to a maximum fine of $325,000.  This maximum fine amount is misleading, however, because when a show is nationally broadcast, the number of stations carrying the broadcast penalty may serve to multiply this base forfeiture amount by the number of stations carrying the program to arrive at the ultimate fine, although there is a cap of $3,000,000 for fines related to a single incident.


Obscenity is prohibited speech that receives no protection by the First Amendment to the Constitution.  Obscenity is banned by the FCC from the public airwaves at all times.  The present standard for the determination of obscene material is a three-pronged requirement:

  1.  An average person applying contemporary community standards, must find that the material, as a whole, appeals to the prurient interest;
  2. The material must depict or describe, in a patently offensive way, sexual conduct specifically defined by applicable law; and
  3. The material taken as a whole, must lack serious literary, artistic, political or scientific value.  Miller v. California 413 U.S. 15, 24 (1973).

The definition of prurient interest has changed over the years.  At one time it was merely synonymous with lust, but “lust” has been recognized by some courts as including a “normal, healthy interest in sex.”  Brockett v. Spokane Arcades, Inc. 725 F. 2d 482 (1984).  The Supreme Court has accepted the definition of lust as being “that which appeals to a shameful or morbid interest in sex.”  Certainly that is not the most precise of definitions, which may be why in another case dealing with defining hard core pornography, Justice Potter Stewart famously noted that he could not define it, but he knew it when he saw it.

The term “contemporary community standards” as used in the determination of obscenity as well as later determinations of indecency was interpreted by the Supreme Court not to refer to a particular geographic or local community.  The FCC has instead applied a standard of “not one based on a local standard, but one based on a broader standard for broadcasting generally.”  Infinity Broadcasting Corporation of Pennsylvania (WYSP FM) 3 FCC Rcd, 930, 933 (1987).

Certainly it could be argued that contemporary community standards already regulate radio content through ratings.  Ratings determine what will and will not be on the air.  Material that offends the public is bad for business.  Indecent content, which I will discuss in a later column, is permitted after 10:00 p.m. until 6:00 a.m., yet indecency is not rampant in those hours because broadcasters already reflect the standards of their communities.  Unfortunately, this argument has, to date, carried little weight with the politically charged FCC.

Presently, the FCC does not concern itself much with obscenity, but has focused much of its attention, particularly in recent years, on the matter of indecency, which carries a lower standard to qualify as impermissible  on the airwaves although the vague standards that apply to both indecency and obscenity make them both equally difficult to truly define in any precise manner.

Steven J.J. Weisman, a practicing attorney, is a senior partner in the talent management firm Harrison Strategies, LLC. He is also legal editor for TALKERS magazine. He can be e-mailed at: stevenjjweisman@aol.com.

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Category: Legal