Regulation of Broadcast Indecency: Background and Legal Analysis Page: 4 of 29
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Regulation of Broadcast Indecency:
Background and Legal Analysis
Two recent events have placed increased attention on the Federal
Communications Commission (FCC) and its broadcast indecency regulations.1 The
airing of the 2003 Golden Globe Awards and the subsequent ruling of the FCC's
Enforcement Bureau, coupled with the controversy surrounding the 2004 Super Bowl
half-time show, have brought broadcast indecency to the forefront of the
congressional agenda. Several bills have been introduced to increase the penalties
imposed for broadcast indecency and prohibit the broadcast of certain words and
phrases. In addition, both the House and Senate have scheduled hearings on
broadcast indecency. This report provides background on the two events in question,
discusses the legal evolution of the FCC's indecency regulations, and provides an
overview of how the current regulations have been applied. The final section of the
report considers whether prohibiting the broadcast of "indecent" words regardless of
context would violate the First Amendment.2
On January 19, 2003, a number of broadcast television stations in various parts
of the country aired the Golden Globe Awards. During the awards, the performer
Bono, in response to winning an award, uttered the phrase "this is really, really
f[***]ing brilliant."3 In response to this utterance, the FCC received over 230
complaints alleging that the program was obscene or indecent, and requesting that the
The FCC's indecency regulations only apply to broadcast radio and television, and not to
cable television. The distinction between broadcast and cable television arises in part from
the fact that the rationale for regulation of broadcast media - the dual problems of
spectrum scarcity and signal interference - do not apply in the context of cable. As a
result, regulation of cable television is entitled to heightened First Amendment scrutiny. See
Turner Broadcasting v. Federal Communications Commission, 512 U.S. 622 (1994). Cable
television is also distinguished from broadcast television by the fact that cable involves a
voluntary act whereby a subscriber affirmatively chooses to bring the material into his or
home. See Cruz v. Ferre, 755 F.2d 1415 (1985).
2 The final section of this report ("Would prohibiting the broadcast of 'indecent' words
regardless of context violate the First Amendment?") was written by Henry Cohen; the rest
of the report was written by Angie A. Welborn.
3 See In the Matter of Complaints Against Various Broadcast Licensees Regarding Their
Airing of the "Golden Globe Awards" Program, 18 F.C.C. Rcd. 19859 (2003).
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Regulation of Broadcast Indecency: Background and Legal Analysis, report, June 23, 2004; Washington D.C.. (digital.library.unt.edu/ark:/67531/metadc812042/m1/4/: accessed November 13, 2018), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.