'Indecent' broadcasts protected High court denies pleas to ban them

March 03, 1992|By Lyle Denniston | Lyle Denniston,Washington Bureau

WASHINGTON -- Congress' attempt to ban all "indecent" broadcasts on radio and television came to an end yesterday in a brief order issued by the Supreme Court.

Without comment, but over two justices' dissents, the court turned aside pleas to revive a 1988 law that had imposed a 24-hour ban on any broadcast that the government deemed to be "indecent."

That law had been nullified in May by the U.S. Circuit Court of Ap

peals here, which said that the government must pick some time during each 24-hour period that such broadcasts could be put on the air -- a time when perhaps only adults would be in the audience.

The Federal Communications Commission, which had joined in asking the court to reinstate the 24-hour ban, now is faced with the task of defining a "safe harbor" time slot for programs that are sexually explicit -- but not so much so that they qualify as obscene. Obscene broadcasts are banned altogether.

At one point, the FCC thought that such programs could be aired at night, after 10 p.m. But Congress sought to overrule that view in 1988, and approved the total ban.

With the total ban now nullified, the FCC is required to reconsider the time slot issue, as well as to spell out reasons why the government feels any need to regulate "indecency" on radio and television.

In returning the controversy to the FCC yesterday, the Supreme Court noted that Justices Sandra Day O'Connor and Byron R. White wanted to hear the plea to revive the 1988 ban. But it takes the votes of four justices to grant a review.

The newest justice, Clarence Thomas, did not take part in yesterday's order, because he was a member of the Circuit Court panel that had struck down the 24-hour ban.

Besides rebuffing an appeal by the FCC, the court turned aside a separate plea by the Children's Legal Foundation and the American Family Association arguing that "indecency" was as harmful to adults as it was to children, and thus no one should be allowed to hear that kind of programming.

The Supreme Court's order yesterday, along with an order it issued in late January, makes it appear that the government now has more power to regulate "indecency" when it is offered in paid telephone messages than when it is aired on radio or television.

The court in January had refused to hear a constitutional challenge to a 1989 law aimed at blocking children's calls to sexually explicit message lines.

Since the court gave no explanation for either of its recent orders, in January or yesterday, it is unclear whether the justices see a constitutional difference between regulating "indecency" depending upon the medium of the message.

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