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Cable indecency rules likely would be unconstitutional

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NEWS MEDIA UPDATE   ·   WASHINGTON, D.C.   ·   Broadcasting   ·   Dec. 8, 2005

Cable indecency rules likely would be unconstitutional

  • The U.S. Supreme Court probably would not uphold restrictions on indecent material on cable television comparable to the restrictions the Federal Communications Commission imposes on non-cable broadcasters, according to a report released Dec. 1 by the Congressional Research Service.

Dec. 8, 2005  ·   Government restrictions on indecent speech on cable or satellite television would likely be found unconstitutional by the U.S. Supreme Court, according to a congressional agency which studies potential legislation at the request of individual congressmen.

The Congressional Research Service studied suggestions from various federal officials that the Federal Communications Commission’s indecency regulations, which ban broadcast indecency between 6 a.m. and 10 p.m., could be extended to cable and satellite television without violating the First Amendment’s guarantees of freedom of speech.

In an 11-page report, CRS pointed to a 2000 U.S. Supreme Court decision that the government’s restrictions on cable speech, unlike those applicable to broadcast speech, would be entitled to “strict scrutiny” by the court and would fail legally unless the court could find that they served compelling government interest by the least restrictive means. The high court also found in that case that previous decisions of the court indicate that it would not uphold such speech restrictions on cable.

The report discussed the underlying legal basis the court has used in allowing regulation of broadcast indecency — that broadcast spectrum is scarce and that broadcasters have a “uniquely pervasive presence” and are “uniquely accessible to children.” The report also examined a decision striking down a ban on indecent material on the Internet.

The report notes that in 1996 a plurality of the court held that cable and broadcast television differ little, if at all, in “pervasiveness and intrusiveness,” but it said there has been no indication that the court would overturn the indecency regulations on broadcasters even if they are based on the “unique pervasiveness” of broadcasters.

CRS does not identify which congressmen request its studies.

(Constitutionality of Applying the FCC’s Indecency Restriction to Cable Television; Henry Cohen, Legislative Attorney, CRS)RD

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