Broadcast ban on 'indecency' struck down Law can't exclude all such speech, appeals court rules

May 18, 1991|By Lyle Denniston | Lyle Denniston,Washington Bureau of The Sun

WASHINGTON -- A federal appeals court struck down yesterday a federal law that would have put a total, 24-hour-a-day ban on radio or television broadcasts the government considers to be "indecent."

The U.S. Circuit Court of Appeals here ordered the Federal Communications Commission to set aside some time during which stations would be free to broadcast programs or comments that could not satisfy the FCC's standard for "decency."

A "safe harbor" for putting such programs on the air, the Circuit Court said, is required by the Constitution, even though Congress did not think it was.

The FCC considers a broadcast program or comment to be "indecent" if it involves "patently offensive" language describing sexual activity, sex organs or biological functions in a way that exceeds "contemporary community standards."

Under federal law, the FCC also has the power to stop "obscene" broadcasts. Those involve displays of more explicit sexual activity, the kind that the Supreme Court has said can be banned at all times in all publications or broadcasts. The 24-hour ban at issue in the Circuit Court involved only "indecency."

FCC Chairman Alfred C. Sikes said that he was "disappointed" by the ruling and that he would discuss the commission's legal options with the Justice Department. It is common for the government to go to the Supreme Court to try to save a law struck down by a lower court.

The Circuit Court did not specify yesterday what hours of the day or night should be designated for broadcasts of "indecent" material. Because the 24-hour ban was postponed temporarily by court order, the FCC has taken no action to date against "indecent" broadcasts between 8 p.m. and 6 a.m. -- including a television show's news broadcast of photographs by the late Robert Mapplethorpe showing nude children and homosexual sex acts. The photos were displayed at a gallery in Cincinnati.

Under the Circuit Court ruling, the FCC now must make a thorough study leading to the designation of a formal "safe harbor" period that the agency can justify as necessary to protect children from seeing or hearing material that parents find objectionable for them.

Action for Children's Television, which won the court case against the 24-hour ban, has said it would favor a rule that permitted "indecent" shows after 10 p.m. Other groups, including some broadcasters, have favored a time earlier in the evening, when audiences would be larger.

A 10 p.m. rule had applied for years, but in 1987 the FCC moved the window for beginning "indecent" broadcasts to midnight. That change was struck down by the Circuit Court in July 1988. Before the FCC could write a new rule permitting earlier broadcasts of "indecent" material, Congress intervened in October 1988 and ordered the FCC to adopt a total ban. The agency did so promptly.

That ban, which was delayed from taking effect while the court challenge went ahead, was formally nullified by yesterday's ruling. The Circuit Court, conceding that Congress might have thought that a total ban on "broadcast indecency" would be valid under the Constitution, said it was the courts' job to decide that issue ultimately.

Even while striking down the 24-hour ban, the Circuit Court did uphold again, as it had in 1988, the basic authority of the FCC to regulate "indecent" programs.

It remarked, however, that "broadcast material that is indecent but not obscene" is protected by the Constitution's free speech and free press clauses in the First Amendment, and the FCC may regulate it "only with due respect for the high value our Constitution places on freedom and choice in what the people see and hear."

The commission, it added, "may not ban such broadcasts entirely," and neither can Congress do so by passing a law.

The Circuit Court also noted that the Supreme Court has struck down a total ban on indecent messages over commercial telephone lines.

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