LENGTHY COURT FIGHT SEEN FOR NEW INDECENCY RULES

It’s “not inconceivable” that the Supreme Court would even overturn the 1978 Pacifica case, which forms the basis for indecency enforcement, said Robert Peters, pres. of Morality in Media: “The Supreme Court basically does what it wants. Pacifica (in which the Supreme Court upheld broadcast indecency rules by 5-4) shouldn’t even have been close. It was only a natural extension of the public indecency laws. Indecency enforcement has nothing to do with public spectrum, and everything to do with protecting children and the public decency.”

But the Supreme Court is even less likely to uphold Pacifica now than in the narrow 1978 vote, said First Amendment attorney Robert Corn-Revere in Jan. testimony before the House Telecom Subcommittee. He said even the Pacifica decision didn’t give carte blanche to regulating indecency, and it’s “far less plausible” now to base indecency regulation on the pervasiveness of the broadcast media, since 85% of homes get their TV through non-broadcast means, and have access to new media such as the Internet. In addition, Corn-Revere said, “society has changed as well, and has grown far more tolerant of the wide range of content that is available.”

Courts also have raised “serious questions” about the validity of the Pacifica decision in unrelated cases, such as Reno vs. ACLU, an Internet case in which the court said the indecency definition was seriously deficient, Corn-Revere said.

Opponents see even bigger issues with expanding indecency enforcement to performers, cable and satellite. Fining performers for broadcast indecency “clearly raises Constitutional issues” of free speech, said Thomas Carpenter, national dir.-news & broadcasting, for AFTRA. He called large indecency fines “a bread and butter issue for our members,” many of whom don’t make large salaries. It’s particularly difficult for performers, he said, because they often don’t decide on the content or when it’s aired: “Something that’s indecent during Saturday morning cartoons is not necessarily indecent at 3 a.m.”

Extending indecency enforcement to performers isn’t appropriate because they're not licensees, said Andrew Schwartzman, pres. of Media Access Project. He said licensees are “volunteers,” who get the benefit of free access to the airwaves in return for some limitations, such as indecency rules: “Artists are not volunteers. They ought to have their full First Amendment rights.”

But extending indecency rules to performers shouldn’t raise new Constitutional issues, said Morality in Media’s Roberts. He said the indecency enforcement isn’t based on holding an FCC license, but on “the privacy of the home and the near inability to limit the arrival of indecent programming in the home.”

Cable is relatively confident any final indecency rules won’t extend enforcement to cable and DBS, said Daniel Brenner, NCTA senior vp-legal. He said the “law has been settled for a long time” that subscription media don’t face the same limits as broadcast because subscribers invite them into their home, instead of programming being automatically available as in the case of broadcast.

Brenner dismissed arguments that, since both DBS and cable use licensed spectrum (cable for backhauls and feeds to head ends), they could be subject to indecency enforcement. He called that a “red herring” because cable doesn’t use spectrum to deliver programming to end users: “The key to the spectrum part is whether the public can just plug in a device and get it over the air. That’s not true for us.”

Expanding indecency rules to broadcast and cable “borders on arbitrary and capricious behavior by the government,” said Craig Smith, chmn. of the Film & Electronic Arts Dept. at Cal. State U.-Long Beach and dir., Center for First Amendment Studies. In addition to saying cable was invited into the home, the courts have “regularly held that cable and the Internet can not be reduced to the standard acceptable for children only,” Craig said: “That would deprive adults of their rights.”

Not surprisingly, Roberts also disagreed with that, on the same grounds of protecting the public: “Cable and DBS have the same nature as broadcasting.” He said the arrival of more channels makes indecency enforcement even more important because it’s harder for parents to know which channels and programs might have indecent content.

Smith also dismissed the possibility that new limits on TV violence would stand: “The courts have generally shot down attempts to conflate violence and indecency… Violence is another vague term that can be applied in an arbitrary way. Hamlet has tons of violence, and so does Road Runner.”

Despite legal arguments against increased indecency enforcement, “people are throwing caution to the winds” on toughening rules, said one attorney whose clients include broadcasters. He said the process may “take a long time to play out,” but action is almost inevitable because the Super Bowl incident was “like pouring gasoline on a fire… There had been a lot of pent up demand” for increased enforcement. The FCC has been “under tremendous pressure” for some time to step up enforcement, he said, but “I'm curious how many people at the Commission really believe they will win in a court case.”

Appeals of new indecency rules “may take years,” Schwartzman said, because of the “complicated political, social and legal issues” involved. However, the broadcast lawyer said appealing the new rules, instead of waiting for an enforcement action to play out, could speed the process.