Legal Briefing: A Win for 'Indecency' on TV, and a Trial for Hard-Core Porn

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FCC's Outdated, Prudish 'Indecency' Policy Struck Down

Ever since Pacifica Foundation broadcast George Carlin's "Seven Dirty Words You Can Never Say On Television" monologue, the Federal Communication Commission has tried to keep the airwaves decent. However, its latest policy was just struck down as unconstitutional by the Second Circuit.

Empowered to censor indecent material by the Supreme Court's decision in the Carlin case, the FCC originally acted cautiously, out of respect for the decision and the First Amendment, by focusing on only the seven words, explained the Second Circuit Court of Appeals. In 1987, the FCC tweaked its policy by focusing on context rather than the presence of certain words, but its enforcement was still limited, and fleeting expletives, like Cher or Bono's swearing during live broadcasts of awards shows, were OK.

Public outcry over Cher, Bono and Janet Jackson's Nipplegate (surely the vast majority of Americans were silent) prompted Michael Powell's FCC in 2004 to change course and go after even fleeting expletives. However, in doing so, the FCC became a caricature of a state censor, unpredictably targeting content: F**k and s**t were banned, but Saving Private Ryan could be shown on TV, despite its use of the F-word. D**k and d**khead were somehow acceptable. TV stations nervously refused to air certain shows for fear of being slapped with newly beefed up fines: At least 20 ABC affiliates' refused to show Saving Private Ryan and at least 12 CBS affiliates refused to show an award winning 9/11 documentary. The result, the Second Circuit explained, was a policy that unconstitutionally vague, and had the effect of chilling more speech than was necessary. As a result the FCC's indecency policy was unenforceable, although the court noted that Supreme Court precedent, particularly the Carlin case, meant the FCC could try to fashion a different, constitutional decency policy.

The Second Circuit then went further, almost taunting the FCC to appeal its decision, by saying that the rationale underlying the Carlin decision was no longer valid: In today's media landscape, which includes V-chips in TV sets, near-universal access to cable TV and widely available Internet content, treating broadcast TV differently and acting as if parents are helpless to protect their children from questionable content no longer makes sense.

If the FCC does appeal, the Supreme Court is likely to side with the broadcasters, and to overturn the precedents the FCC has been relying on, for the very reasons the Second Circuit suggests. Indeed, an earlier Supreme Court decision in this case found that the indecency policy was OK on process grounds -- it didn't violate the rule-making rules -- but suggested it might not survive a substantive, free speech challenge.

It'll be interesting to see if the FCC wants to hang on to its current policy so strongly that it appeals and risks losing all of its authority to censor -- the chairman issued a statement calling for an appeal. Of course, even if it doesn't appeal now, some other case will eventually present the question to the Supreme Court.

Pornographer on Trial in D.C. in Rare Case

While fleeting expletives are not problematically indecent, hard-core porn, even if not broadcast to the unsuspecting, can be, under the Supreme Court's "I know it when I see it" obscenity standard. Nonetheless, proving material illegally obscene is so hard to do prosecutions are rarely undertaken. Washington D.C. is currently seeing one of these rarities, and the two videos at issue are so graphic the judge has ordered everyone in the court to stay silent during the proceedings as a decorum-protecting measure, and ejected anyone under 18 from the courtroom. The judge went so far when showing a 50 minute clip of one video at issue as to have it run silently for the public, giving headsets only to the jurors and the media, reports the Blog of the Legal Times.

The jury must decide if the videos violate Washington's sense of decency (It has one? It's hard to tell looking at Congress.) and lack serious artistic or scientific value. According to the National Law Journal, the material certainly has plenty of ick factor. Jay Sin's Milk Nymphos and Joey Silvera's Storm Squirters 2 have "numerous scenes of urination, use of enemas and violent bondage. In a number of scenes, participants ingested urine and excretion from the enemas." Artistic or scientific value? Doesn't sound like it. Nonetheless, criminalizing material involving consenting adults accessed for viewing by consenting adults? Deeply problematic.

In other, softer porn news, Hugh Hefner is being sued by shareholders over his plan to take Playboy private, reports Bloomberg.