In the Janet Jackson debacle, CBS broadcast what FCC Chairman Michael Powell (along with many others) considered to be obscene. The FCC and its chairmen are given the power to make such judgments under the Communications Act of 1934. The Communications Act is the bill passed by Congress that created the FCC and regulates its practices and procedures.
Recently, the FCC has also been cracking down on obscene radio broadcasts by putting pressure on communication giants like Clear Channel to clean up their act.
This pressure came in the form of an unprecedented fine of $775,000 for broadcasting indecency. The FCC cited "26 apparent indecency violations that involved graphic and explicit sexual and/or excretory material" from the popular Bubba the Love Sponge radio show [ref]. But this begs the question: How does the FCC determine indecency, and is indecent or obscene material protected by the First Amendment?
The FCC position on this is clear as stated on its Web site:
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.
The FCC breaks offensive broadcasting into two types: "obscene" and "indecent." 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 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. The courts have held that indecent material is protected by the First Amendment and cannot be banned entirely. It 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 [ref].
But even these definitions leave a lot of area for interpretation. How do you dictate the details?