Court upholds regulation of indecent broadcasts

07/17/95

WASHINGTON, D.C.–The government may restrict hours that “indecent” programs may be broadcast, the U.S. Court of Appeals (D.C. Cir.) held in late June.

A 7-4 majority of the court upheld part of Section 16(a) of the Public Telecommunications Act of 1992 as constitutional. Section 16(a) seeks to shield minors from “indecent” television and radio programs by restricting the hours during which such programs may be broadcast. The section provides that radio and television stations may broadcast indecent materials only between midnight and 6 a.m.

Although the court upheld this “safe harbor” provision, it struck down an exception for certain public radio and television stations. The exception allowed those that go off the air at or before midnight to broadcast indecent materials after 10 p.m. The court found that Congress failed to justify the distinction.

The case was remanded to the FCC with instructions to limit its ban to the less restrictive period from 10 p.m. to 6 a.m.

The court held that the government has a compelling interest in protecting children under the age of 18 from exposure to indecent broadcast. The majority found that “channeling” of indecent broadcasts between the hours of midnight and 6 a.m. does not unduly burden the First Amendment rights of adult viewers. The court noted that “although the restrictions burden the rights of many adults, it seems appropriate that the marginal convenience of some adults be made to yield to the imperative needs of the young.”

Also, in its opinion, the majority went out of its way to say that Congress could reinstate the midnight to 6 a.m. safe harbor across the board by concluding that, standing alone, this period is narrowly tailored to serve “the government’s compelling interest in the well-being of our youth.”

In his dissent, Chief Judge Harry T. Edwards found fault with the majority’s conclusion that Section 16(a) is the least restrictive means to further the government’s compelling interest. He argued that the government’s asserted interests in facilitating parental supervision and protecting children from indecency are in conflict, the FCC offered no evidence that indecent broadcasting harms children, and that the government made no attempt to find a less restrictive means to the interests that have been asserted.

Edwards strongly criticized the court and Congress for distinguishing between broadcast and cable operators, noting that the government does not regulate cable with the same heavy regulation that it applies to the broadcast media. (Action for Children’s Television v. FCC; Media Counsel: Timothy Dyk, Washington, D.C.)

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