Indecency, Profanity, Pornography, and Obscenity in Broadcast Regulation Study Notes

INDECENCY, PROFANITY, PORNOGRAPHY, AND OBSCENITY IN BROADCAST REGULATION

GOALS

  • To learn the legal definitions of indecency, pornography, obscenity, and profanity in the United States.

  • To understand the federal restrictions on broadcasting them on television and radio in the U.S.

  • To learn about infamous incidents involving these concepts on broadcast television and radio, which led to notable consequences.

  • To understand what happens if you broadcast this material in the U.S.

CONTENT WARNING

  • This lecture discusses principles of indecency, pornography, obscenity, and profanity as they relate to media law, with a focus on mature content.

  • Various parts of the lecture include profanity and sexual content, with explicit language used in certain videos.

  • Some visual material, such as representations of Michelangelo's David (a nude sculpture), is included for educational purposes.

  • The lecture aims to balance clarity and illustration without being gratuitous. No obscene material will be presented.

KEY TERMS & CONCEPTS

  • Indecency: Material that describes sexual or excretory organs or activities, deemed offensive based on community standards.

  • Profanity: Grossly offensive language considered a public nuisance.

  • Pornography: Material depicting nudity or sexual acts for sexual stimulation.

  • Obscenity: A subset of pornography without literary, artistic, political, or scientific value; illegal to broadcast.

  • FCC’s Two-Part Test for Indecency: Framework for determining indecency based on community standards.

  • Safe-harbor period: Time when indecent material can be legally broadcast (10 PM to 6 AM).

  • Martin Lawrence incident on SNL: Notable case of indecency involving comedian Martin Lawrence.

  • Nudity on NYPD Blue: A case addressing nudity depicted outside the safe-harbor period.

  • 2004 Super Bowl scandal on CBS: Incident involving Janet Jackson and Justin Timberlake, leading to widespread complaints.

  • George Carlin's "Seven Words" Routine: Landmark case demonstrating the limits of broadcast indecency.

  • FCC v. Pacifica Foundation (1978): Supreme Court case affirming FCC's authority to regulate indecency.

  • Prurient interest: An interest that serves to satisfy a morbid, degrading, or excessive desire for sexual gratification.

INDECENCY

Definition

  • Indecency: Language or material that describes sexual or excretory organs or activities in a context that is patently offensive based on contemporary community standards.

    • Legal to broadcast during the FCC's safe-harbor period, except profanity and pornography which are illegal at all times.

Profanity

  • Profanity: Considered a form of indecency, defined as grossly offensive language, and is illegal to broadcast outside the safe-harbor period.

Distinction Between Terms

  • Not all indecency is pornographic (e.g., a picture of poop is non-pornographic).

  • Profanity is grossly offensive but does not always constitute pornography.

  • Some pornography may or may not be deemed indecent, depending on community standards.

LEGAL FRAMEWORK

Federal Statutes

  • 18 U.S.C. §1464: It is a federal crime to use obscene, indecent, or profane language through radio communication. Violators may face up to two years in jail, and the FCC can revoke a station's license.

Regulatory Authority

  • The FCC regulates indecency; it is legal to air such content during the safe-harbor period defined from 10 PM to 6 AM local time.

FCC’s Two-Part Test for Indecency

  1. Criterion 1: Does the material depict or describe sexual or excretory organs/functions?

  2. Criterion 2: Would the average viewer or listener consider it patently offensive based on contemporary community standards?

  • Patently offensive: Clearly offensive.

  • Contemporary community standards: Varies by location; what is acceptable in one city may not be in another.

  • If both criteria are met, the material may be considered indecent, but punishment is contingent on audience complaints.

SAFE-HARBOR PERIOD

  • Established in 1978 after the Pacifica case, allowing broadcasters to air indecent material during designated hours (10 PM to 6 AM).

  • Legal Violations: Airing indecent material outside this period can result in fines of up to $3 million per incident.

  • Responsibility for adherence lies chiefly with the broadcast stations.

STANDARDS AND PRACTICES

  • Broadcast networks often create internal guidelines (standards and practices) to regulate indecency, beyond legal requirements, to protect their public image.

  • These policies exist in both broadcast and cable networks to maintain an appropriate image (e.g., family-friendly).

EXAMPLE OF INDECENCY #1: MARTIN LAWRENCE (1994)

  • Hosted SNL, made a controversial monologue encouraging explicit behavior.

  • Though aired during the safe-harbor period, it breached NBC's standards and practices, resulting in a permanent ban from the network.

EXAMPLE OF INDECENCY #2: NUDITY ON NYPD BLUE (2003)

  • Show featured a fleeting glimpse of nudity during prime-time hours, leading to a $1.4 million FCC fine, which was later overturned due to vagueness in the FCC's rules regarding "fleeting" nudity.

EXAMPLE OF INDECENCY #3: 2004 SUPER BOWL INCIDENT

  • The halftime show featuring Janet Jackson experienced a wardrobe malfunction, provoking over 500,000 complaints.

  • Resulted in a $550,000 fine for CBS, later overturned by courts due to lack of clear guidelines regarding live events.

  • Highlighted disparities in how events are treated based on broadcasting format (broadcast vs. cable).

MAJOR TEST OF INDECENCY LAW

George Carlin’s “Seven Words You Can Never Say on Television” (1972)

  • Carlin questioned society's view on the acceptability of certain words; the routine led to FCC v. Pacifica Foundation (1978) ruling that indecency is not protected under the First Amendment.

PROFANITY

  • A form of indecency defined as grossly offensive language, illegal to broadcast except during the safe-harbor period.

  • Instances of profanity in broadcasts often addressed with fines or warnings by the FCC, albeit with some cases receiving leniency based on context.

EXAMPLE OF PROFANITY ON TV #1: BONO, GOLDEN GLOBES (2003)

  • Bono's acceptance speech included the phrase “fucking brilliant,” aired without censorship, but no fine was levied due to its fleeting and non-sexual context.

EXAMPLE OF PROFANITY ON TV #2: LEE CORSO ON ESPN (2011)

  • Corsi dropped a profanity while making a pick, which led to an apology but no FCC fine due to network discretion and context.

PORNOGRAPHY

  • Defined as material depicting nudity or sexual acts for sexual stimulation or gratification, illegal to broadcast. The context is critical, as material presented for educational or artistic purposes may not meet the legal threshold for pornography.

COMMUNITY STANDARDS AND LEGAL DEFINITION

  • Courts struggle to define pornography; the famous quote from Justice Potter Stewart illustrates how subjective this classification can be. Material depicting nudity is not necessarily pornographic unless tied to sexual gratification.

OBSCENITY

Definition

  • A narrow category of pornography lacking serious literary, artistic, political, or scientific value; illegal to broadcast and can result in prison for offenders.

THE MILLER TEST FOR OBSCENITY

  1. Prurient Interest: Does it appeal to a morbid or degrading interest in sex?

  2. Patently Offensive: Does the work display sexual conduct offensively as per the law?

  3. Lack of Value: Does it lack serious literary, artistic, political, or scientific value?

  • If all criteria are met, the material is classified as obscene and illegal to broadcast.

CONTROVERSY IN LEGAL PRINCIPLES

  • The principle of obscenity raises questions concerning free speech and the abuse of legal definitions to suppress expression that might not actually violate community standards.