Obscene Broadcasts are Prohibited at all Times
Obscene speech is not protected by the First Amendment and cannot be broadcast at any time. To be obscene, material must meet a three-prong test:
An average person, applying contemporary community standards, must find that the material, as a whole, appeals to the prurient interest;
The material must depict or describe, in a patently offensive way, sexual conduct specifically defined by applicable law; and
The material, taken as a whole, must lack serious literary, artistic, political, or scientific value.
Indecent Broadcast Restrictions
The FCC has defined broadcast indecency as "language or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community broadcast standards for the broadcast medium, sexual or excretory organs or activities." Indecent programming contains patently offensive sexual or excretory references that do not rise to the level of obscenity. Indecent programming may, however, be restricted in order to avoid its broadcast during times of the day when there is a reasonable risk that children may be in the audience.
Consistent with a federal statute and federal court decisions interpreting the indecency statute, the Commission adopted a rule pursuant to which broadcasts -- both on television and radio -- that fit within the indecency definition and that are aired between 6:00 a.m. and 10:00 p.m. are subject to indecency enforcement action.
Profane Broadcast Restrictions
Profane material is defined as including language that denotes certain of those personally reviling epithets naturally tending to provoke violent resentment or denoting language so grossly offensive to members of the public who actually hear it as to amount to a nuisance.
Like indecency, profane speech is prohibited on broadcast radio and television between 6am and 10pm.
First Amendment and Obscenity/Indecency
Expressions of views that do not involve a "clear and present danger of serious substantive evil" come under the protection of the Constitution, which guarantees freedom of speech and freedom of the press. The Communications Act prohibits the FCC from censoring broadcast material, in most cases, and from making any regulation that would interfere with freedom of speech. According to an FCC opinion on this subject, "the public interest is best served by permitting free expression of views." This principle ensures that the most diverse and opposing opinions will be expressed, even though some may be highly offensive. The Courts have said that indecent material is protected by the First Amendment to the Constitution and cannot be banned entirely. Nonetheless, the FCC has taken numerous enforcement actions against broadcast stations for violations of the restrictions on broadcast indecency.
Enforcement of Indecent Broadcast Restrictions
Enforcement actions in this area are based on documented complaints received from the public about indecent or obscene broadcasting. The FCC’s staff reviews each complaint to determine whether it has sufficient information to suggest that there has been a violation of the obscenity or indecency laws. If it appears that a violation may have occurred, the staff will start an investigation by sending a letter of inquiry to the broadcast station.
If a complaint does not contain information sufficient to determine that a violation may have occurred, the complaint will be dismissed. In such a case, the complainant has the option of re-filing the complaint with additional information, filing a petition for reconsideration of the staff action, or filing an application for review (appeal) to the full Commission.
If the facts and information contained in the complaint suggest that a violation did not occur, then the complaint will be denied. In that situation, the complainant has the option of filing a petition for reconsideration of the staff action or an appeal to the full Commission.
Context
In making indecency determinations, context is key! The FCC staff must analyze what was actually said during the broadcast, the meaning of what was said, and the context in which it was stated.
