The Congressional Research Service, the public-policy research arm of Congress, has apparently been busy pondering the legal ramifications of changes to FCC indecency enforcement.
The service has issued two reports--actually one new and one an update of an earlier one, at the request of legislators. It does not identify which legislator or legislators requested them.
The new report is on the constitutionality of applying the FCC's indecency restrictions to cable and satellite--a hot topic in Washington these days--and the second is on the prospects for a challenge to the FCC's ruling that even fleeting, adjectival use of the f-word is indecent.
As is the rule with such reports, they essentially lay out the various possible legal scenarios rather than handicapping success, but the cable report says that it "seems uncertain whether the court would find that denying minors access to 'indecent' material on cable TV would constitute a compelling governmental interest."
On the issue of whether the prohibition on the broadcast of "indecent" words regardless of context violates the First Amendment, the report points to arguments that the "proliferation of cable channels has rendered archaic Pacifica's denial of full First Amendment rights to broadcast media."
Pacifica was the 1960s case in which the FCC ruled that George Carlin's "Filthy Words" routine was an indecent broadcast, justifying that content regulation using, in part, the "spectrum scarcity" argument established in the Red Lion decision.
But even if the spectrum scarcity argument still holds, the report said, Pacifica, the last high court ruling on broadcast indecency,"did not hold that the First Amendment permits the ban either of an occasional expletive on broadcast media or of programs that would not be likely to attract youthful audiences, even if some programs contain 'indecent' language."