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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.

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