Page 327 - Battleground The Media Volume 1 and 2

0 | Obscen ty and Indecency

in terms patently offensive as measured by contemporary community standards
for the broadcast medium, sexual or excretory organs or activities.” Indecent
programming contains patently offensive sexual or excretory material that does
not rise to the level of obscenity. Since obscenity lacks First Amendment pro-
tection, it cannot be broadcast on the public airwaves. Indecent speech, on the
other hand, is covered by the First Amendment, and thus cannot be barred from
the airwaves entirely. This poses a dilemma: how can a free society balance the
rights of adults to consume adult-oriented material with the goal of shielding
children from language or imagery that some feel is inappropriate for young
audiences?
The solution, as devised by the FCC, in response to several key Supreme Court
rulings, is known as the “safe harbor” provision, which prohibits the broadcast-
ing of indecent material between the hours of 6:00 a.m. and 10:00 p.m. Broadcast
companies, stations, and on-air personalities violating this rule are subject to
fines. Like the laws prohibiting obscenity, rules restricting indecency are incon-
sistently enforced, with great fluctuations depending upon the political/religious
climate predominating in the nation at any particular time. When our nation is
in a more conservative period, greater concern is expressed about the transmis-
sion of such material.
The fines imposed on broadcasters by the FCC for indecency violations were,
at one time, set at a relatively low rate of several thousand dollars per incident,
and only rarely enforced. This changed significantly following an incident involv-
ing singers Janet Jackson and Justin Timberlake, in which Ms. Jackson’s breast
was inadvertently exposed to a national audience watching the CBS television
coverage of the half-time performance of the 2004 Super Bowl. In response to
the tremendous public outcry about the event, particularly from conservative
viewers, Congress and the FCC raised the indecency fines to over 20 times their
original level. Viacom, then owners of the CBS network, were fined a record-
breaking $550,000 for airing the incident, despite the fact that all parties in-
volved claimed that the “wardrobe malfunction” had been an accident.
During the same period, “shock-jock” radio personality Howard Stern, long
famous for his “off-color” language and humor, became a target for public con-
cerns about indecency on the airwaves. Clear Channel Communications, the
national radio chain that had carried Stern’s syndicated program, dropped him
from their program line-up after being charged heavy fines for airing his mate-
rial. In a move clearly designed to send a strong message, the FCC also issued
fines of over half a million dollars to Stern himself for violating restrictions on
broadcasting indecency. Some critics at the time argued that the real reason for
the strong stand taken against Stern was that the radio personality had begun to
use his airtime to criticize President Bush.
Whether it was indecency or politics that turned Stern into a target, it was a
new communication technology that provided the “solution.” In a development
that illustrates the power of new media to allow “taboo” messages to bypass ex-
isting restrictions on controversial speech, Howard Stern moved from broadcast
to satellite radio, which, at the time of this writing, is not governed by content
restrictions on indecency.