Court upsets FCC rule limiting indecent telecasts

November 24, 1993|By New York Times News Service

WASHINGTON -- A federal appeals court has struck down as unconstitutional a government regulation prohibiting indecent television programs broadcast between the hours of 6 a.m. and midnight.

The three-member panel of the U.S. Circuit Court of Appeals for the District of Columbia said that in try ing to shield children from indecent programs, the Federal Communications Commission did not adequately consider the First Amendment rights of adults to view such programs.

The immediate results of the ruling are unclear. It would seem to allow broadcasters to televise indecent programs at any time, but Robert Ratcliffe, the assistant chief for law at the FCC's mass communications bureau, said the agency would probably enforce rules under which the agency operated until 1991.

Those rules have never been explicitly ruled unconstitutional, but they are stricter than the one struck down yesterday. They restricted indecent programming to after 8 p.m.

Yesterday's ruling is the latest in a complex series of court opinions aimed at defining how the government may balance the desire of many people to quarantine offensive material while preserving the Constitution's guarantee of free speech.

The commission enacted the regulation last year in response to a mandate from Congress, which has been pressing the issue. Congress earlier ordered the agency to impose a 24-hour ban on material that, according to the FCC, falls short of obscene or pornographic but is considered "contrary to standards for broadcast medium."

The agency defines indecent material as "depicting sexual or excretory activities or organs" in terms that are "patently offensive as measured by contemporary community standards for the broadcast medium."

The appeals court last year struck down the 24-hour ban as unconstitutional, and yesterday it said that the agency had not ,, justified the narrower "safe harbor" for broadcasting indecent materials between midnight and 6 a.m.

Noting that the government said the regulations, which also apply to radio broadcasts, were largely to protect children from indecent materials, the appeals court said, "We can locate no evidence in the record that the government has taken the First Amendment interests of adults into account in advancing its compelling interest in the protection of children."

The judges said that limiting protected speech had to be done carefully and that the commission, acting in haste because of the congressional mandate, had not done that.

Yesterday's opinion was written by Judge Patricia M. Wald and joined by Chief Judge Abner Mikva and Judge Harry T. Edwards. All three were appointed by President Jimmy Carter and are considered the most liberal members of a court widely viewed as frequently cleaving along distinct liberal-conservative lines.

That decency standard was established in 1987 when a Kansas City television station, KZKC, broadcast the film "Private Lessons" beginning at 8 p.m. In the film, a young man loses his virginity to his older tutor.

Timothy B. Dyk, a Washington lawyer who represented the networks and others who challenged the latest regulation, said yesterday's ruling "tells the FCC and the Congress that the very restrictive approach they've been trying to impose in the indecency area is simply unconstitutional."

Mr. Dyk said the definition of indecency was so broad that it would prohibit countless legitimate films and plays. Because of the definition's vagueness, he said, broadcasters engage in a kind of self-censorship, shunning materials that might attract the attention of the Federal Communications Commission.

The overall issue of regulating the content of broadcast television shows has been made more difficult by the growth of cable television. The government initially claimed the power to regulate television programming because the airwaves were limited and required the government to apportion radio frequencies.

But there is no such argument for cable, which is available in about 60 percent of American households with televisions. Cable television is largely unregulated on the issue of indecency, courts have ruled, because cable customers must explicitly choose to buy the programming.

To underline that issue yesterday, the same appeals court panel also struck down another FCC regulation requiring cable broadcasters to prohibit indecency on public-access channels that are made available to any member of the community.

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