Constitutionality of Applying the FCC's Indecency Restriction to Cable Television

Publication Date: December 2005

Publisher: Library of Congress. Congressional Research Service

Author(s):

Research Area: Media, telecommunications, and information

Type:

Abstract:

Various federal officials have spoken in favor of extending the Federal Communication Commission's indecency restriction, which currently applies to broadcast television and radio, to cable and satellite television. This report examines whether such an extension would violate the First Amendment's guarantee of freedom of speech.

The FCC's indecency restriction was enacted pursuant to a federal statute that, insofar as it was found constitutional, requires the FCC to promulgate regulations to prohibit the broadcast of indecent programming from 6 a.m. to 10 p.m. The FCC has found that, for material to be "indecent," it "must describe or depict sexual or excretory organs or activities," and "must be patently offensive as measured by contemporary community standards for the broadcast medium."

In 1978, in Pacifica, the Supreme Court held that, because broadcast radio and television have a "uniquely pervasive presence" and are "uniquely accessible to children," the government may, during certain times of day, prohibit "[p]atently offensive, indecent material" on these media. In 1996, however, a Supreme Court plurality held that, with respect to "how pervasive and intrusive [television] programming is . . . cable and broadcast television differ little, if at all."

Then, in 2000, the Court held that governmental restrictions on speech on cable television are, unlike those on broadcast media, entitled to strict scrutiny. Thus, whereas, in Pacifica, the Court upheld a restriction on "indecent" material on broadcast media without applying strict scrutiny, the Court apparently would not uphold a comparable restriction on "indecent" material on cable television unless the restriction served a compelling governmental interest by the least restrictive means.

It seems uncertain whether the Court would find that denying minors access to "indecent" material on cable television would constitute a compelling governmental interest. Assuming that it would, then, whether or not there is a less restrictive means than a 6 a.m.-to-10 p.m. ban by which to deny minors access to "indecent" material on cable television, it appears that a strong case may be made that applying the FCC's indecency restrictions to cable television would violate the First Amendment. This is because, as the Supreme Court wrote when it struck down the ban on "indecent" material on the Internet, "the Government may not `reduc[e] the adult population . . . to . . . only what is fit for children.'" In addition, the Court, in the 2000 case mentioned above, struck down a speech restriction on cable television, in part because "for two-thirds of the day no household in those service areas could receive the programming, whether or not the household or the viewer wanted to do so."