At least Justice Potter Stewart could say of obscenity that "I know it when I see it." As for "indecency," the Federal Communications Commission tells us, in an April 6 policy statement, about "possible contextual factors that might exacerbate or mitigate the patent offensiveness of particular material."
In other words, the FCC's broadcast-indecency standard remains today just what it was before the commission issued its guidance to the broadcast industry: clear as mud.
Not that the policy statement isn't welcome, even if a bit tardy. The problem lies not so much with the commission but with the legal doctrine itself.
The Supreme Court has held repeatedly that indecent speech is protected by the First Amendment, while obscenity is not. But obscenity at least is governed by the rule of law, whereas indecency is subject primarily to the whim of the regulator.
Practically speaking, obscenity may have greater constitutional protection than "indecent" speech. Consider this:
- Obscenity is confined to sexual or excretory matters that must be "specifically defined by law"; indecency may consist of "sexual innuendo" and is not specifically defined.
- Before a work may be found obscene, it must be considered "as a whole"; in an indecency determination, overall context is important but not dispositive.
- Serious literary, artistic, political or scientific value of material is a complete defense to an obscenity charge; with indecency, the merit of a work is only one of a number of variables to be considered.
- In determining obscenity, the "patent offensiveness" of a work is assessed by its impact on the average adult member of the community; with indecency, patent offensiveness is determined by its possible effect on children.
- With obscenity, "patent offensiveness" is determined by contemporary community standards, as established through evidence; indecency, however, is governed by a national standard set by five political appointees.
In this murky area of the law, the FCC's policy statement tells us very little we didn't already know from prior decisions. It devotes 19 pages to explaining that programming is more likely to be considered to be indecent if it depicts or describes sexual or excretory matters in a graphic way, if it dwells on sexual matters, and if it is "pandering."
But then again, perhaps not. The FCC explained that a "highly fact-specific" inquiry could find that patent offensiveness was mitigated or exacerbated in a particular case but that it is "difficult to catalog comprehensively all of the possible contextual factors" that might be relevant.
The commission offered a number of "case comparisons" to illustrate how these factors have been applied in particular instances, but its highly selective sampling provides little guidance for the future.
Some of the cases in which the FCC found material to be actionably indecent are hard to distinguish from the few examples in which no indecency was found. Otherwise, the policy statement included no discussion of what might be considered close cases.
Ultimately, the commission's "guidance" asks us to trust that those appointed to the FCC will understand and apply the "contextual factors" in a constitutionally sensitive way. Recent experience, however, reminds us that some commissioners are quite comfortable wielding the censor's shears.
And as Judge Dolores Sloviter, of the U.S. Court of Appeals for the Third Circuit, observed in the case of Internet censorship, the government's promise to enforce the indecency standard "in a reasonable fashion ... would require a broad trust indeed from a generation of judges not far removed from the attacks on James Joyce's Ulysses as obscene."
The FCC's highly discretionary standard, coupled with its ability to withhold regulatory approvals while indecency complaints are pending, explains why licensees are loath to test the legality of a commission ruling in court.
At least, none have done so except Evergreen Media Corp. In February 1994, after a federal court said it would hear Evergreen's constitutional challenge to the government's objection, the FCC quickly entered a settlement agreement dismissing its forfeiture order and promising to publish industry guidance within nine months.
Six and a half years later, the commission released the April 6 policy statement. Better late than never, I suppose. But not much help, either.
Robert Corn-Revere is a partner at law firm Hogan & Hartson LLP in Washington, D.C.