Court strikes down indecency regulation

WASHINGTON, D.C. — The U.S. Court of Appeals (D.C. Cir.) for the third time since 1987 threw out Federal Communications Commission rules requiring that indecency be broadcast only during limited “safe harbor” hours that the court said not only protected children but also unnecessarily prohibited adult access to indecency in violation of the First Amendment.

The FCC adopted a new definition of indecency in 1987 and narrowed the former 10 p.m. to 6 a.m. safe harbor for broadcast of indecency to midnight to 6 a.m. In 1988 the appeals court ruled that the FCC had failed to justify the time constraints.

In October 1988 Congress passed a 24-hour ban on indecency (known as the “Helms Amendment”), which the appeals court declared invalid in May 1991.

In August 1992 Congress again passed a law authorizing the FCC to restrict broadcasts of indecent material to hours between midnight and 6 a.m., except that stations signing off at midnight could broadcast indecency after 10 p.m.

Writing for the court, Judge Patricia Wald reiterated that the First Amendment protects indecent speech and that while the government may regulate speech to promote the compelling government interest of protecting children from indecent speech, it must do so by the least restrictive means to protect that interest.

She held that the safe harbor provisions of the 1992 Telecommunications Act are unconstitutional because they are not carefully tailored to serve the government’s dual interests in helping parents supervise their children and in protecting the well- being of youth, without protecting the First Amendment interests of older minors and adults in hearing constitutionally protected speech. Wald directed the FCC to conduct an inquiry into the specific concerns raised in the first case: appropriate definitions of “children” and of “reasonable risk” of exposure to indecency. She directed the agency to set a safe harbor based on its findings.

Concurring that the law is unconstitutional, Judge Harry Edwards questioned Wald’s holding that the government has any interest, aside from protecting parental authority, in protecting children from indecency. He said that unlike violent programming, indecent programming has not been shown to harm children.

(Action for Children’s Television v. FCC (Act III); Media Counsel: Tim Dyk, Washington)