Stevens’ Push for Cable Indecency Rules Raises First Amendment Concerns

“Broadcast indecency standards as applied to cable TV would fail the constitutional test,” said Rob Stoddard, NCTA senior vp-communications & public affairs. News Corp. doesn’t support a family programming tier, said a company official who asked not to be identified: “We have been in and talked to the committee about this, and have taken a number of steps to try to respond to their concerns in terms of programming that we show.” The firm is taking many steps to avoid a repeat of the Super Bowl incident involving Janet Jackson. “We're doing a lot of things to address the situation,” the person said.

There’s a clear legal line separating broadcasting content from subscription products like cable and DBS, lawyers said. Some criticized the expansion of indecency’s definition -- whatever the medium. “I think the whole thing has gotten out of hand. I think the way to attack it should be to attack the expansion of the definition of indecency, not that cable should be immune,” said Jerome Barron, a George Wash. U. professor who teaches First Amendment law. “I would have a very narrow margin of regulation for both media.” The Senate Commerce Committee has been circulating a draft bill to boost broadcaster penalties more than 15-fold to $500,000 for each instance of obscene material. The bill could be marked up next week, said Hill sources. “My own view is that this new effort to impose impressive fines is not a good development,” said Barron.

The 1978 FCC v. Pacifica case has set a standard for what content can be subject to indecency rules, lawyers said. “Narrow” censorship of indecent content was upheld by the Supreme Court in overturning the U.S. Appeals Court, Washington, D.C. “At most, however, the Commission’s definition of indecency will deter only the broadcasting of patently offensive references to excretory and sexual organs and activities, [which]…surely lie at the periphery of First Amendment concern,” said the ruling. It said time of day and context are important in determining whether something’s indecent. “In the Pacifica case when the concept of broadcast indecency was given some leeway, the emphasis was on how narrow that regulation would be. But it seems to me to be greatly, broadly extended now,” said Barron. Another First Amendment lawyer agreed: “The norm is that the government doesn’t get to restrict speech except for in highly [narrow] categories.” He said the Pacifica case is “the exception.”

“It’s going to be very difficult if not impossible for Congress to extend indecency to other media, and in fact I think it’s going to be very difficult to sustain the indecency rules they have,” said the lawyer. Still, referring to Stevens, he said: “I assume that he still has an interest, based on what he’s said earlier.” On the desire of some lawmakers to regulate indecency, the lawyer said: “The will’s been there forever, and they don’t care about the Constitutional implications, really.”

The draft Family TV Act bill, which would boost penalties, doesn’t take on cable directly. Yet cable isn’t totally in the clear, even if an extension of indecency to pay video services is far fetched, said one observer. “Never underestimate the ability of members of Congress to grandstand on this issue and threaten with the sword of Damocles of regulation but not impose,” said PFF’s Adam Thierer. “It’s the fact that the sword hangs, not whether it falls, that counts.”