MIM Legal Brief – FOX vs FCC Indecency Case, U.S. Supreme Court, 2011

Posted on September 15, 2011, in Opinion, Pornography Laws

Publication Information


Brief Amicus Curiae of Morality In Media, Inc. In Support Of Petitioners

Read full legal brief here: http://pornharmsresearch.com/wp-content/uploads/2011/09/MIM_LegalBrief_FoxFCC_09-12-2011.pdf


When Congress enacted the Radio Act of 1927 and the Communications Act of 1934, it did not define “indecent.”  Broadcasters were presumed to know what is meant by “decency.”  In response to Court decisions, the FCC later defined “indecent,” clarified the definition and provided a “safe harbor” for indecency. Courts have repeatedly held that the FCC definition (also used in other laws) is not unconstitutionally vague. That possible stiff fines for violations of the law may deter some lawful conduct is not a reason to invalidate it.

If the inability to define  indecent with “ultimate, god-like precision” means that the FCC can no longer regulate indecency, then depictions of “hard-core” sexual conduct can be shown on 3 broadcast TV because not all depictions of “hardcore” sex are obscene under the Miller test.

If  precision is constitutionally required with respect to enforcement of the broadcast indecency law, it should also be required with respect to claims of sexual harassment involving a “hostile work environment.”   The latter concept is anything but precise; but employers,  including broadcasters, must still determining what is or isn’t acceptable workplace behavior.  Broadcasters should also be responsible for determining what is “indecent.”

Despite their protestations, the problem is not that the broadcast TV networks can no longer discern contemporary community standards.    The problem is that they long ago stopped caring much about these standards.  Decades ago, the networks adhered to a voluntary industry code that reflected community standards.   Later, they had standards departments that kept programming somewhat in check.  Today, they push the envelope and then complain they don’t know whether the FCC will deem this or that violation of community standards actionable.  If the networks were genuinely concerned about standards, there are steps they can now take to remedy the current situation.

Serious value is an important variable that the FCC considers when determining whether content violates the indecency law.  It has rightly rejected the notion that if a work has merit, it is per se not indecent.  If a broadcaster disagrees with an FCC ruling involving content with alleged “serious value,” the appropriate remedy would be to 4 appeal that determination. The Supreme Court has stated that a determination about serious value is “particularly amenable to appellate review.”

When Congress enacted the Radio Act of 1927, it did not give broadcasters a right to use the public airwaves to curse at least once.  Perhaps it would be unwise to roll back the clock and to insist that when Congress said “any obscene, indecent or profane language,” it meant what it said.  It would also be unwise to determine that broadcasters have a right to utter at least one expletive, regardless of circumstances.  There is a “middle road” between prohibiting all expletives and allowing at least one – namely, when utterance of one or more expletives amounts to a nuisance, it is actionable.

The Court below questioned whether the broadcast media are still “uniquely pervasive and uniquely accessible to children” and indicated that “strict scrutiny” should apply when evaluating challenges to the indecency law.  Amicus contends that it was not broadcasting’s “uniqueness”  per sethat justified its special treatment in 1978 but rather that unlike any other form of media then in existence, broadcasting had become pervasive and readily accessible to children.  It is still pervasive and readily accessible to children  and government still has a necessary protective role to play.


Read full legal brief here: http://pornharmsresearch.com/wp-content/uploads/2011/09/MIM_LegalBrief_FoxFCC_09-12-2011.pdf


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